Malta: anti-SLAPP proposals require a more ambitious approach
Malta is the country with the highest number of Strategic Litigation Against Public Participation (SLAPPs) per capita in the European Union. Troubling statistics combined with the ongoing quest for full justice for Daphne Caruana Galizia should prompt Malta to demonstrate a special commitment to enacting comprehensive legislation to protect public watchdogs from abusive lawsuits and set an example for other countries.
Article 19 Europe, the Committee to Protect Journalists (CPJ), the European Centre for Press and Media Freedom (ECPMF), the European Federation of Journalists (EFJ) and Reporters without Borders (RSF) have commented on the updated proposals relating to SLAPPs made by the Committee of Experts on Media (the Committee) established by the Government of Malta as part of the recommendations of the Public Inquiry on the assassination of journalist Daphne Caruana Galizia. At the outset, we express our ongoing concern about the lack of transparency regarding the implementation of the recommendations of the Public Inquiry.
While we welcome the progress in the development of the Committee’s proposals relating to the enforcement of third-country judgments, we note that they lack a proper framework to prevent SLAPPs.
The proposed amendments are limited to the law of defamation and libel. This narrow scope fails to provide the necessary protection of the right to public participation which should be the key feature of any efficient anti-SLAPP mechanism. In addition, the vague definition of SLAPP defamation suits as “manifestly unfounded” would exclude lawsuits that bear hallmarks of SLAPPs but might not fall under this category.
We encourage the Committee to urge the Government to take further steps to fulfil its international human rights obligations and fully protect and promote a safe media environment in Malta. Given the evidence showing that at least in one case the proposer of a SLAPP suit consulted public officials on how to sue journalists in Malta, it becomes incumbent on the Committee and on the Government to ensure that anti-SLAPP legislation goes beyond minimum criteria that may be established at the EU level.
In particular, we urge the Committee to recommend that the Government:
- Introduce a standalone comprehensive anti-SLAPP law;
- Revise the proposed definition of “manifestly unfounded”;
- Introduce a mechanism for dismissal before the continued hearing and determination of the merits of the claim;
- Introduce a provision that the court must stay the hearing and the determination of the merits of the claim while it is determining whether the claim is abusive;
- Introduce clarification that where a defendant has applied for early dismissal, the claimant shall prove that the claim is not manifestly unfounded;
- Clarify the nature of the damages for which a claimant may be found responsible and the extent of the penalties which may be imposed on a claimant;
- A foreign judgment should be identified as a SLAPP, and consequently rejected, for the same reasons as a domestic or intra-EU action;
- The proposal must provide the court of the defendant’s domicile with the power to assess whether third-country proceedings would have been considered abusive had their own law been applied.
Read the full submissionhere.