You may have dismissed that piece of news as the collective moaning of a bunch of gamblers who gambled away their money and are trying to get it back, refusing to accept the stakes of their foolish playing. What follows is not a sob story about gambling addiction. The complaint to the European Commission by lawyers for German and Austrian gamblers who lost money to gaming companies licensed in Malta may have undertones of addiction and commercial abuse. I wouldn’t know. I haven’t looked into the matter deep enough.
But there’s an aspect to this story that may or may not surprise you that tells you a lot about the values of the government that rules your country.
First the basic facts. Gamblers in Germany and Austria went to the courts of their countries to complain that money they lost to Malta-registered gaming companies should never have been taken away from them. They claim that the gambling websites they gambled on were not licensed to operate in their countries or at the very least did not meet the licensing criteria required in Germany and Austria. Therefore, they claim, they had been deceived into gambling unlawfully like someone might sell you a bootleg lottery ticket, only the money involved is obviously a lot more than you can spend on a bootleg lottery.
The courts they complained to, in Germany and Austria, agreed the games were unlawful and the players were to be given their money back.
But the companies are licensed in Malta which means that these self-described victims, now recognised as such by the courts of their own countries, need to come to the court in Malta to have the decision enforced here.
A few days ago, without any fanfare whatsoever, the government of Malta proposed to Parliament a short amendment in the law that effectively orders Maltese courts never to enforce decisions by courts outside of Malta taken against gaming companies registered in Malta.
The German and Austrian players are beside themselves and their lawyers wrote to the European Commission to protest the fact that Malta is pissing on the principle of being in the EU that decisions taken by a court in one European country are enforced in any other.
Now, admittedly, principles are one thing and details are a demonic other. The principle is that we have a single market which means that if we are to be allowed to do business in each other’s territories than we must respect the decisions of each other’s courts. The detail is we’re talking about gaming which is not uniformly regulated throughout the EU.
I’m not proposing a legal treatise on the niceties of gaming law in the single market. I’ll leave that to the experts.
I am however going to compare the government’s conduct here with what may not at first appear to be an analogous situation.
For years we have argued with the Maltese government that in order to protect journalists and free speech in Malta, it should be a matter of public policy that the Maltese courts do not enforce decisions taken by foreign courts finding Maltese journalists when reporting in Malta about Maltese affairs for a largely Maltese audience guilty or responsible for defamation. That’s the longer definition of SLAPPs.
For years the government rejected altogether the notion of protecting journalists from SLAPP suits, claiming that a policy that would stop Maltese courts from enforcing defamation decisions taken by other EU courts would be unlawful under EU law. They preached in Parliament and outside it that as EU members, we must continue to oblige our courts to enforce, without question or exception, decisions of other European courts.
The European Commission disagreed. Certainly, the open European market is a principle of the EU, but free expression is an even more fundamental principle and the interests of the market cannot crush the fundamental and democratic right of free expression. Journalists normally cannot afford to defend cross-border lawsuits and no one can be expected to write things in compliance of defamation laws of any other country they might be sued in. That’s why European journalists need protection from SLAPPs.
In spite of the Commission’s guidance that Maltese journalists can indeed be protected from SLAPP suits filed against them, nothing changed in the government’s policy. The bill published by the government in September 2022, which calls itself anti-SLAPP, completely rules out any protection to journalists working here from the enforcement of decisions on defamation taken against them in other EU countries.
The killing of Daphne Caruana Galizia who clocked a record number of threats of cross-border SLAPP suits, four years of lobbying, the publication of an EU Commission recommendation and a draft directive under the informal brand Daphne’s law, and actual SLAPP suits filed against Maltese journalists including yours truly, were not enough to move the Maltese government to ban the enforcement of SLAPP suits against journalists.
A couple of gaming companies operating within a dubious legal context considered manifestly unlawful by the authorities of member states of the EU lose court cases that threaten to nibble at their spectacular profits and the government jumps in with a new law to rescue them.
Needless to say, though I’ll say it anyway, there’s no speech free consideration in these cases filed against gaming companies in Germany and Austria. Their only consideration is making money in an activity repeatedly deemed unlawful by the courts of other countries.
Nor is there any question of inability of these companies to afford their own defence in German and Austrian courts like journalists working in Malta would need to do if they’re sued for defamation there.
A serious “pro-business” government would tell gaming companies that complying with the laws of the countries in which they sell their products is their responsibility and incumbent on them. Quite why we should legislate to allow companies registered in Malta to profit in other countries in breach of the laws of those countries is beyond my understanding. It shows disloyalty to the Union and contempt for the rule of law.
And it betrays the fact that the objections to a half-way decent anti-SLAPP law are complete lies. For that is our government: it heroically rescues gambling gangsters but let the small-time journalist who habitually calls Silvio Schembri a twat to fend for their sorry self.