Guest post by Andrew Borg-Cardona.

Even if I were a journalist, I hope I would not have attended Minister Owen Bonnici’s press conference on Tuesday, when he sought to justify his failure to show support for the media. He sought to explain why he prefers, apparently, to allow corporate bullies to continue to forum shop in their efforts to slap down criticism and exposure by journalists.

Actually, the best thing to have done would have been to attend and then walk out.

Owen Bonnici might then – but only might – have got the message that not all journalists love and adore him. Maybe, for the future, we would thereby be spared the smug grin every time he gets to his hind legs to publicise some event in the increasingly vapid V18 circus. Or some boast about how the number of pending court cases is diminishing, as if this is what is important to ensure the rule of law in this beleaguered land.

In any event, I was not at the press conference, so I will rely on the media that chose to attend, and remain, to listen to the Minister’s pearls of wisdom.

One such pearl was his admission that “the most common SLAPP suits occur here”, that is to say in Malta. A Government Minister has admitted that people seek to muzzle the free press here in Malta (and we all know where the majority of SLAPP-style attacks originate) and this is not the headline of the piece. I despair of the mainstream media.

Getting back to his apologia, Bonnici let it be known that he had sought advice on justifying his failure to support the anti-SLAPP proposal not “from bodies within the EU” but from four separate legal entities. Precisely what he thinks this adds to the merits or otherwise of the advice he received is not entirely clear, though he did add that the four entities were considered to be “experts in the field”.

Far be it from me to gainsay the expertise of my learned colleagues, but a brief resume’ of their provenance might interest readers. Prof. Ian Refalo, my professor of Private International Law many decades ago, is currently my doughty adversary in the Ferris proceedings: I am on the side that is trying to resist Prof. Refalo’s client the Attorney-General’s valiant efforts to shroud these proceedings in deep silence. Dr Paul Cachia is – in a sense – Refalo’s current incarnation in teaching Private International Law.

The problem here is that the subject under discussion, press freedom and related human rights, actually falls more properly under the heading Public International Law, where considerations such as state sovereignty, reciprocity and human rights are more vital than the manner in which commercial debts are collected or civil judgements enforced.

The Attorney-General is the Government’s lawyer, and as such the perennial opponent of those seeking to enforce their rights against it, and Bird & Bird, at least from a perusal of their website, don’t seem to have much expertise in human rights. They are, however, very strong in the commercial law sphere.

Those are the experts chosen by Owen Bonnici to advise him on whether to adopt measures that would protect journalists in their duty to strengthen scrutiny and transmit and receive information on the doings and misdoings of our Government and its hangers-on. In a private conversation with respected colleagues on Tuesday, I confirmed my opinion that Bonnici’s expert advice was (conveniently for him) way too restrictive and failed to take into account human rights and rule of law considerations that should have been paramount.

I was directed, for instance, towards the decisions of the European Court of Human Rights in the matters of Steele & Maurice v UK and Tolstoy v UK. Surprise was expressed that Bonnici’s advisers had failed to consider these, and many other, cases that emphatically protect the right of individuals to be free from oppressive damages claims and to have real and effective, as opposed to completely cost-obstructed, access to the courts.

From his assorted interventions, it appears that apart from the proposed amendments being ‘contrary to EU law’ (they’re not) Bonnici has formed the opinion that journalists are anyway already sufficiently protected from SLAPP attacks and therefore the amendments are un-necessary on this basis.

In a sense he is right, because the law on the enforcement of foreign judgements already tells us that if a judgement contains dispositions that are contrary to the public policy of Malta, the court may choose not to enforce it. It is already the public policy of Malta that damages in libel cases are capped at €10,000 (contrasting with the $40,000,000 Pilatus Bank sought in Arizona against Daphne Caruana Galizia) and anyway, since Malta is a Republic based on human rights, it follows that it is the public policy of Malta that SLAPP suits are anathema.

You will have noticed the enormous and fatal flaw in Bonnici’s argument.

If public policy considerations are already (according to him) sufficient unto the day when it comes to protecting journalists, what is the problem with making it crystal clear that SLAPP suits are – quite simply – not on? The EU is already moving steadily – if slowly – towards enhancing protection of the Fourth Estate, so does Bonnici really believe that it is contrary to EU law to extend the protection in Malta?

Surely not, since we’re supposed to aspire to being the ‘best in Europe’?

The flaw grows in enormity when you take into account the stark fact that as the law stands, you would have to find a judge who agrees with Bonnici’s (implied) interpretation that the law is what it is. Judges in Malta, with all due respect, have not shown themselves particularly prone to embracing wider concepts of human rights protection, as Judge Giovanni Bonello’s masterly series of articles in the Sunday Times is currently bringing into high definition focus.

Bonnici, with an insouciance that would be breathtaking were we not already accustomed to it, also advised that when it comes to SLAPP suits from outside the EU (Arizona, perhaps?) “journalists could choose not to respond to such suits”.

The sheer irresponsibility of a Minister for Justice advising people not to respond to law suits almost beggars belief. Does Bonnici really think that it would be prudent to stand in default and then hope that the Maltese courts will interpret the law in favour of a media house that chose this course of (in)action?

I believe I will be forgiven for holding this sort of advice in a significant degree of contempt, though I have to acknowledge that the reality is that the cost of going to court outside Malta is such that there is no real choice but to fail to defend SLAPP suits.

The quality, such as it is, of Bonnici’s arguments is such as to confirm to me – and many others – that he has failed to demonstrate even on a balance of probability that he has anything but indifference towards the fate of journalists threatened with financial ruin.

As usual, a Labour politician has chosen to stand on the wrong side of history.