The second amendment to the libel law that the government published yesterday is labelled as the government’s initiative to provide “protection against judgements abusively obtained from courts outside Malta”. The government handed journalists paper umbrellas and sent them out in the rain.
There are a number of reasons why I say that.
Firstly, the government starts out with three generic exceptions to the application of the new law saying that the provision can only be applied “without prejudice to” EU law, to international treaties and to the code of civil procedure.
International legal experts have already told the government they’re confused by this reservation. Their conclusion is that the government appears to want to ensure that the law does not apply to judgements delivered by any EU court. This is strange and unhelpful and in any case once the draft EU Directive which Commission Vice President Vera Jourova labelled Daphne’s law becomes legally binding it will need to be reversed as that directive is expressly designed to protect journalists inside the EU from cross-border suits inside the same EU.
Why go against the legal direction indicated by the Commission now that it’s published and on the way to becoming law that we’ll need to apply in this country in any case?
The reference to international treaties is also odd. Why does the government need this exception? Why do they retain the power to withhold the protection of journalists sued inside countries run by governments with whom our government agrees to suspend basic media freedom protections in our laws?
Are there any treaties in existence that bind the Maltese authorities to ensure that decisions taken by signatory countries against Maltese journalists that are, by our standards a breach of freedom of expression, are enforced on journalists working here? If so, can the government tell us which countries these are and which treaties provide for this?
If not, why do they need this? Are they planning to enter into new commitments that would bring about a dilution of the same principles of free expression that they are supposed to be strengthening with this law?
That’s how ridiculous these amendments are.
Next is the exception made to the code of civil procedure. I confess I’m at a loss with this one probably the result of my technical incompetence in the esoteric fineries of civil law. So, I’m going to have this as a hanging doubt until someone sager than me explains to me what they might want with it. Except to say that a law that is meant to protect journalists from the abuse of freedom of expression should be clear enough for journalists to understand the pitfalls they must avoid if they are to hope to be protected by it.
We now come to the level of protection the new law gives in the cases where it would still apply: cases outside the EU that do not prejudice some treaty and some obscure provision in the civil procedures code.
The protection is far, far short of anything anyone asking for protection from SLAPPs has been hoping for. The way the law is designed means that it can only be resorted to after a foreign court has already decided against a journalist operating in Malta. In Malta they could ask for the decision not to be enforced at all or the fines and costs imposed to be capped at the levels determined under Maltese law for equivalent fines.
Sounds good. In Malta you cannot be ordered to pay more than €11,000 in damages in a libel suit. If a US court orders you to pay $40 million in damages a Maltese court could, according to this law, cap your penalties to €11,000. I can see how there are ways that’s better, or at least less bad.
Here it comes. In order to grant you this sort of protection the Maltese court will need to agree that the case filed against you in the foreign jurisdiction amounted to a SLAPP. SLAPP is barely and poorly defined in the amendments published yesterday. The dictionary definition of a SLAPP suit is not that it is a suit that lies about what a journalist has said or written. A SLAPP suit is the act of abusing legal procedures in order to intimidate a journalist. This common understanding of just the sort of lawsuit we are supposed to be protecting journalists from does not appear to extend to what the government has published.
In practice, according to this amendment, it will still be invariably necessary for a journalist asking for the protection of a Maltese court from an earlier judgement from a court outside the EU to show that they’ve entered a defence in that first court. But that is precisely why we need protection from SLAPP suits, because none of us, not even Times of Malta, can afford to hire lawyers to file a defence in, say, Arizona in a case brought by a hypothetical Ali Sadr as that particular Kittitian had done against Daphne Caruana Galizia.
What’s more, the amendments say nothing about which laws are to apply. When the owner of Satabank sued me in Bulgaria one of the arguments in my defence there was that since I was writing in Malta on a Maltese bank it was reasonable for me to expect to be governed by Maltese libel laws. And yet I had been tried under Bulgarian laws when Satabank sued me there.
What would not be illegal to write in Malta given our standard of protection of free speech might very well be illegal under Chinese law. How am I expected to exercise my right of free speech in Malta if I’m to make sure no one can claim to have been libelled by some unknown Chinese standard of free expression?
Almost certainly this new law would not have protected me in Bulgaria because for reasons explained above it is likely this new law does not apply to cross-border lawsuits within the EU. But if the same situation arose in a law suit outside the EU, I would have had to defend myself according to the laws of the country where the SLAPP suit is filed and then restate my case in Malta using Maltese laws to try to avoid the decision of the first court being executed on me.
This is madness. It’s, frankly, not much better than not having this protection at all. In some respects, it’s worse.
To be fair the new law does say that a journalist could argue in Malta that the execution of a decision of a foreign court would amount to a breach of the freedom of expression as it is understood in Malta. But. Again, a but. The ambiguities, contradictions, and grotesque reservations of this new law are now being incorporated in Malta’s understanding of freedom of expression. In other words, we’re fucked.
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