The following guest piece by Andrew Borg Cardona is in reaction to Minister Jose’ Herrera’s article this morning in the Times of Malta. Herrera gives ‘reasons’ for the government’s no-longer silent refusal to protect Malta’s journalists and prevent the chilling effect of the threat of libel tourism.
Environment Minister Jose’ Herrera, a lawyer by profession for whose academic attributes I have all the respect due, regaled us with half a page on the Times on Saturday with his reasons why the anti -SLAPP proposals made by his, and my, colleague Jason Azzopardi should wait.
Herrera does not seem to think that the media is in need of urgent protection against the clear and present danger of financially crippling vexatious libel suits of the type Pilatus Bank and Henley & Partners have instituted and threatened to institute. Herrera. clearly, has never had to consider the prospect of needing to engage counsel in the UK or the United States at his cost.
This is understandable: his Government has the resources to do this without blinking , whereas for those of us who operate in the real world, finding the funds to pay lawyers just to defend a case, never mind the danger of losing, is a nonstarter in practice. Libel lawyers in these jurisdictions charge sums that have many zeros attached, and upfront.
It is primarily the process of defending these bullying procedures that deters some sectors of the media from standing up to the outfits that seek to shut them up.
Herrera tells us that Azzopardi’s proposal might cause “us” (Malta) to fall foul of concepts of private international law that are meant to allow individuals access to the courts to protect their rights. Frankly, even if this had a basis in reality, rather than stretching the noble aim of protecting the individual to giving comfort to corporations that are, in the time-honoured phrase, big enough and ugly enough to take care of themselves without resorting to throwing their weight around in court rooms, protecting freedom of expression and the constitutional role of the Fourth Estate trump Herrera’s already weak thesis every time.
Herrera also tells us that there already exists legislation that protects against vexatious enforcement of foreign judgements. Here, I submit with all due respect, Herrera is being disingenuous to the extent that one has to wonder when was the last time he consulted the Code of Organisation and Civil Procedure.
The COCP, as the Code is known to lawyers, does have a set of rules in this regard, one of which refers to a foreign judgement falling foul of the public policy of Malta. It must be assumed that this is the provision that Herrera has in mind, though he fails to give us chapter and verse. The snag here is that we’re looking at a concept, “public policy”, that is not defined and that can only be defined by reference by contextualising it within the political and social dynamic of the country from time to time.
Speaking for myself, in a country where two known fans of SLAPPing down the media are hardly looked upon with anything but benevolence by the Government, I would be wary of concluding that the public policy of Malta would in fact preclude the enforcement of a judgement delivered in London or Arizona or wherever.
This is why Jason Azzopardi’s proposal is important: it works in such a way as to put Malta at the forefront of recognising the vital importance of the media being freed from the threat of ruinous, vexatious, law suits designed exclusively to gag. By enacting the amendments, Malta would be standing up to be counted and making a very important point.
Herrera prefers to hum and haw and invoke nebulous excuses while paying lip service to the notion that a free press is important.
He prefers, unsurprisingly, to shelve anti-SLAPP legislation.
I, on the other hand, would much prefer the point to be made and quickly, because the situation is now desperate.