The Chilling Effect

The Chilling Effect

Malta Today carried today details of the law suit Pilatus Bank filed against Daphne Caruana Galizia in the thick of the 2017 campaign only to withdraw it within a few hours of her death. On their online version they publish the fully copy of the law suit itself.

I was trying to get hold of that law suit and Malta Today beat me to it. There are three possible provenances for a document like that and two can be ruled out:

  • the defendants, but the Caruana Galizia family confirmed to me they first heard of the law suit from me.
  • the court, but I spoke to the court registry in Arizona and they told me the case had been archived and the case records were not in the court building. They ordered a copy for me and that’s still on the way to them.
  • the plaintiffs, Pilatus Bank and Ali Sadr.

Whatever the source and its motivation the document Malta Today published is of great interest.

As you read through its premises for why the law suit was filed in Arizona, you will feel, if like me you’re in the business of uncovering news, the proverbial chilling effect running up your spine. Pilatus Bank argue Daphne Caruana Galizia’s website was a .com and therefore registered in the USA. As such it was right for US courts to apply US laws when hearing the case.

This would apply to any .com news or comment website you are reading, including this one.

There obviously are arguments against the point of view put forward by Pilatus Bank in Arizona. But you’d need to go there to make those arguments. The case would be heard in a trial which will require the service of lawyers licensed in the state where it is heard. An institution like Malta’s The Times would not be able to afford such a defence. Can you imagine what I could afford?

Penalties for defamation in the US can in no way be compared with what Maltese courts would award. Penalties here are determined by the economic and legal realities of the country. In America they are determined by their realities and it is according to those realities that a penalty would be imposed. It would be aggravated by any inability to defend the case.

The decision could then be enforced by a Maltese court. Or conceivably the United States could ask for extradition.

It is incredible that the bankers for Ilham Aliyev and his corrupt, criminal regime put Maltese journalists in a situation where like some Latin American drug-lords they have to contemplate a scenario of extradition to the American justice system for matters they have no opportunity to defend.

In an extradition request none of us are hopeful Joseph Muscat and the government he controls would break any sweat in defending us. We can see the cold viciousness with which the option of an anti-SLAPP law is being effectively discarded by the government. Unofficially the government is briefing that anti-SLAPP laws would prejudice the rights of people like Pilatus and Ali Sadr from seeking effective redress.

Is that really what you’re worried about? Are Maltese courts, in the government’s view, not a suitable venue for redress? Must Maltese people and companies now seek redress in Arizona to have their rights respected?

The manner in which the law suit finds itself in Malta Today today after I broke the story of its existence last week suggests that someone wants the cold warning to the entire Maltese press community to be fully understood.

It is consistent with a chain of direct and indirect actions by Joseph Muscat and those around him to gag freedom of expression and its exercise in the pursuit of the rule of law. Joseph Muscat stood in Parliament yesterday reminding everyone in possession of information suppressed by the FIAU that they will face prison if they were to reveal it. He himself authorised Henley and Partners to start an action against Daphne Caruana Galizia in the manner that Pilatus eventually would.

We cannot escape the suspicion that Joseph Muscat is at least granting willing acquiescence to the effort to use American courts to silence journalists and politicians in Malta. Please, do not think that the reference to the USA is borne out of some prejudice against their court systems. But it is equally wrong to assume fairness just because these law suits are filed in the land of the free.

Justice requires equality of arms for defendant and plaintiffs. The state is obliged to guarantee that equal access to justice for its citizens. There is no way a Maltese blog or news site can have equality of arms against Pilatus Bank in an American court. And therefore it is impossible to have justice there. We are not citizens of the United States and therefore the United States are under no obligation to protect our rights. We are citizens of Malta but it feels as if our state is more willing to defend tax-avoiding, sanctions-dodging Russian oligarchs than it is willing to defend journalists.

As more time passes it becomes ever clearer what was meant when we said Daphne Caruana Galizia stood alone and what she meant by all the crooks everywhere. Faced by this onslaught of power, this alliance between corrupt money and corrupt state authority, we are left alone, naked and exposed to be crushed into submission and silence.

It needs to be understood once and for all that the threats we are exposed to are not normal for journalists in European democracies. Every journalist must watch out for the risk that the subjects of their stories might use legal machinations to silence them. But the blatant abuse we are facing, aided and abetted by the state, is extraordinary by any standard.

The phrase ‘chilling effect’ is not an euphemism for a guilty shudder. It is the description appended to the silence that is a consequence of legal actions ostensibly based on the right for anyone to protect their reputation but really only used for their effect irrespective of whether that reputation is deserved or not.

Filing a libel case in Malta, even frivolously, serves people in Malta on whom information is revealed to buy themselves time with the public and their bosses hoping that win or lose the story might lose traction by the pure passing of time.

Filing a defamation and tort case in the USA, even frivolously, serves people in Malta on whom information is revealed to gag and silence journalists, even, as experience showed us, to burn documented history into the fires burning in the cellars of the Ministry of Truth.

But people have a right to the truth even if they may not know it or want to know it. And we have a duty to seek it.