From weapon to shield: The long road to an EU law to protect your right to know

As the European Parliament, the European Council and the European Commission have entered final negotiations on a European anti-SLAPP directive, The Shift caught up with Maltese MEP David Casa, one of the MEPs who has been at the forefront of the campaign for adequate legislation to protect journalists from the growing threat.

Strategic Lawsuits Against Public Participation (SLAPPs) are a particular form of harassment used primarily against journalists, human rights defenders and political opponents to prevent or penalise speaking up on issues of public interest, and their use has increased over the past decade, not only across the EU but around the world.

The purpose of SLAPPs is not to win a case but to intimidate and bankrupt journalists, causing financial and psychological strain that hinders their reporting. SLAPPs undermine public debate and limit access to diverse information and ideas.

At the time of her untimely death, Daphne Caruana Galizia was facing 43 libel suits, some of which continued even after her assassination. During her journalistic career, she was constantly subjected to a barrage of libel suits by politicians and business people threatening to ruin her financially.

When asked about the state of play on the anti-SLAPP Directive, Casa said the European Parliament has come a long way since he first called for anti-SLAPP legislation. The MEP recalled that when Frans Timmermans (the first Vice President of the European Commission in Juncker’s cabinet) was first approached about the matter, Timmermans said there was no legal basis to combat SLAPPs at a European level.

Nevertheless, thanks to the determination of Vice President Věra Jourová, the Directive is now at an advanced stage of the process, with Parliament’s position currently preserving the ambition of the Commission, which is why it received such strong support during Tuesday’s vote.

The main changes to the Commission proposal adopted by the European Parliament include expanding the definitions of abusive court proceedings and public participation and a broader scope for the cross-border element needed to trigger the directive. The proposal also includes setting up national registers of anti-SLAPP court decisions and a Union-wide record run by the Commission and the creation of national “one-stop shops” to aid SLAPP victims with legal and mental health resources.

Nevertheless, MEPs, including the Directive’s Rapporteur, Tiemo Wölken, acknowledged that the directive may not cover purely domestic cases where the claimant, the court and the defendant are based in the same country, stressing that the European Parliament is only “entitled to rule on cases where there is a cross-border element”. To try and counter this limitation, the directive has expanded the definition of a cross-border element to include public participation acts accessible in more than one member state via the Internet.

Casa further explained that it is not unusual for the European Council to take a conservative approach as Member States generally resist taking on further obligations. “Nonetheless, the negotiations are only about to begin. And I have full faith that the Parliament’s negotiating team will defend their position strongly,” he said.

Expanding on the content of the Directive, Casa noted that the measures contained in the Directive are not meant to be controversial, but the problem of forum shopping needs to be dealt with. “Because even if one jurisdiction allows the rich to abuse its procedures, journalists in other Member States are still at risk”.

The Shift also asked about the novel ways the rich and powerful abuse legal systems to harass journalists. In the UK in 2021, nearly 300 cases against the media were brought in British courts under data protection rules – more than half the total number of media-law claims that year. There have also been instances of GDPR violation claims in Poland and Hungary.

Despite journalists being exempt, takedown requests under Article 17 of GDPR (“the right to be forgotten”) are increasingly being used by some individuals in an effort to have their history erased from archive material. Oftentimes media organisations do not want to spend time and money on assessing the merits of a request, they sometimes comply automatically. In The Shift’s case, it is Malta’s flawed freedom of information laws that are being used to harass a newsroom, signalling that the harassment of journalists is evolving beyond libel claims.

“If a claim brought through GDPR is manifestly unfounded, it should also fall under the scope of this Directive, Casa explained. “But we have yet to see how this will play out legally and in practice”, adding that “the truth is that the rich will always find a way to fight scrutiny, and we must remain vigilant to combat threats as they arise”.

When the European Council adopted its general approach in June, Justice Minister Jonathan Attard said that Malta would have preferred more ambition in the Council’s scope and compensation for damages. At the same time, the Maltese government’s proposed amendments to protect authors, editors and publishers from SLAPP are also considered restrictive by legal experts and international organisations.

When asked about Attard’s comments, Casa underscored that in its latest Rule of Law report, the European Commission criticised the government for its lack of progress in protecting journalists, including the non-existent protections offered in Maltese law.

“But the hypocrisy is clear. This speech does nothing to hide the government’s contempt for journalists at home. And it has had every opportunity to introduce effective laws if it wanted to”, he concluded.

The Shift alone is battling over 40 legal challenges that the government has launched against freedom of information requests. Moreover, the Maltese government continues to make access to public information increasingly difficult.

When asked about these tactics, surreptitiously deployed by the government to make independent journalists’ life difficult, Casa reflected that “Press freedom is not something that can be solved with a single law. We must remain vigilant to new threats and keep in contact with the media to see how best to fight them”.