Council of Europe warns PM: 40 cases against The Shift sends ‘chilling message’

Tista’ taqra dan l-artiklu bil-Malti

A scathing attack has been launched against the government by the Council of Europe’s Human Rights Commissioner over the 40 cases it has instituted against The Shift to deny the newsroom access to information in the public interest.

In a letter sent to Prime Minister Robert Abela on 23 September, Council of Europe Commissioner for Human Rights Dunja Mijatović did not mince her words: “Although the judicial process is still ongoing, the appeals [against The Shift’s Freedom of Information requests] already send a chilling message to media actors and the Maltese people at large that the government is ready to vigorously counter efforts to place official information under public scrutiny”.

The Shift is currently battling 42 cases at the Appeals Tribunal and six cases in court, all launched by government entities defying the Information and Data Protection Commissioner’s orders that the information must be published. At every stage, the government is defying decisions by its own appointed bodies to deny legitimate Freedom of Information requests on different topics.

Mijatović letter to the prime minister, published by the Commissioner on Thursday along with Abela’s lacklustre reply, raised a number of concerns about the state of the Maltese media and the lack of public scrutiny of the government’s Bills tabled in parliament despite widespread criticism.

The letter was published after the government tabled the proposed Bills for reform to parliament despite widespread criticism from editors and journalists, academics and international press freedom organisations on the lack of public consultation. The Commissioner’s correspondence shows the Council of Europe has been monitoring the process and making it clear to the prime minister that the process was not in line with international standards – something Robert Abela never disclosed.

Mijatović singled out for special attention The Shift’s ongoing Freedom of Information battles before the Appeals Tribunal and the courts of law.

“Another issue of concern is the continued difficulties that journalists face in accessing information of public interest and the use of SLAPPs in response to freedom of information requests,” she observed in her letter to Abela. SLAPPs are lawsuits intended to cripple a newsroom financially.

Along such lines, she underscored how she has “learned that 40 governmental entities have recently lodged a series of appeals against decisions made by the Information and Data Protection Commissioner in favour of freedom of information requests made by The Shift News.”

Taking The Shift’s legal battles as a prime case in point, the human rights commissioner added: “Therefore, I reiterate my recommendation to avoid taking measures that may impinge on media freedom and the public’s right to know.

“Instead, I call on you and all Maltese authorities to ensure that journalists and the public have access to accurate and timely information and that exceptions to the rule of public disclosure are interpreted and applied narrowly.”

Malta: Legislative work pursuant to the public inquiry report into the assassination of Daphne Caruana Galizia must comply w. int'l standards & be fully open to public scrutiny & participation.
Read my exchange of letters w. the Prime Minister of #Malta 👇https://t.co/SzbYsv1Qxk

— Commissioner for Human Rights (@CommissionerHR) October 6, 2022

Abela completely ignores concerns

While Prime Minister Robert Abela replied to some of the Commissioner’s concerns on 4 October, mostly by way of lengthy explanations of the controversial draft laws for reform, he categorically ignored her having taken him to task over the government’s 40 SLAPPs against The Shift.

Instead, he gave a broad-stroke overview of the anti-SLAPP provisions in the new controversial legislation without addressing how his own government is at the same time launching SLAPP lawsuits by the dozen against The Shift over its freedom of information requests.

In her letter, sent five days before the draft Bills were presented to the media as a fait accompli, after which they were tabled in parliament on Tuesday, Mijatović also raised concerns over the government-appointed ‘committee of experts’ that drafted recommendations on the new laws.

She said she was informed at the time that “the committee of experts tasked to provide advice on changes to the media sector in Malta has already presented its feedback on several draft laws proposed by your government and that legislative work aimed at curbing the use of Strategic Lawsuits Against Public Participation (SLAPPs) is ongoing.”

“However,” she added, “I am concerned at reports indicating that while the committee includes some representatives of the media sector, it has not reached out to civil society or the broader journalism community, and that its working process lacks transparency.”

Over 100 journalists, editors and academics wrote to the prime minister to express their concern about the lack of public consultation linked to the laws that were expected to address the list of recommendations made by the panel of judges that led the public inquiry on Daphne Caruana Galizia’s assassination.

Caruana Galizia’s parents had also demanded more, saying the country “deserved no less”. And yet, despite these public declarations, including by international press freedom organisations – all a matter of public record – the prime minister insisted with the Council of Europe that broad consultation was held.

#Malta: The govt's proposals on #SLAPPs and media sector must not be passed until they meet intl standards. The legislative process must be transparent and include broad consultations with #civilsociety and journalists' community.

— ARTICLE 19 Europe (@article19europe) October 6, 2022

The Shift’s FOI SLAPPs

The legal process involved in battling the government for information that is meant to be public is complicated and costly, as explained during a debate held by The Shift this week on the subject.

The way in which the government is going about The Shift’s FOI requests is tantamount to Strategic Lawsuits Against Public Participation (SLAPPs) – cases intended to cripple newsrooms financially with the aim of silencing journalists, as confirmed by the COE’s Human Rights Commissioner.

The Shift recently won another seven cases before the Freedom of Information Tribunal, among the 40 appeals the government has filed against The Shift’s FOI requests on how taxpayer funds were being used for public relations consultancies supplied by MediaToday co-owner Saviour Balzan, who advises ministers and government departments on how to handle the media.

Each entity refused the respective requests but was ordered to hand over the information when The Shift brought the refusals to the attention of the Information and Data Protection Commissioner for a ruling.

Still refusing to make the information available as ordered, each entity then brought their cases before the Freedom of Information Appeals Tribunal, which is slowly but surely deciding those cases in favour of The Shift and the public interest.

The Appeals Tribunal has so far struck down 18 of these appeals, with more expected to be decided in the coming days.

But once the FOI Appeals Tribunal strikes down their cases, each government entity is then filing a second appeal in court.  Six such court appeals have been lodged by the government so far as a last-ditch effort to gatekeep information.