The Malta Independent 20 March 2018, Tuesday

TMIS Editorial - Pilatus Bank: Malta’s media freedom SLAPPed in the face

Sunday, 17 December 2017, 10:30 Last update: about 3 months ago

When Pilatus Bank in mid-October threatened this publishing house with the prospect of multi-million euro lawsuits in the United States and the United Kingdom over its reportage, this media house was faced with a dilemma. 

On the one hand, the legal advice was that Pilatus did not have a leg to stand on and that the case is certainly a winnable one, albeit in a foreign land – the UK and USA jurisdiction having been chosen specifically, discarding Maltese jurisdiction. On the other hand, this publishing house had to consider that the costs associated with fighting such a case instituted in the courts of the United States and the United Kingdom would be financially crippling for a business such as ours.

Given the necessity of engaging British barristers to defend our cause, and ultimately the right to publish without inhibition, the case in the UK courts alone could easily run into the region of hundreds of thousands of euros depending on how long and extensive it becomes to reaffirm the fundamental human right of press freedom.

This is a classic example of what is known as a Strategic Lawsuit Against Public Participation (SLAPP) – lawsuits intended solely to censor, intimidate, and silence critics such as the media by burdening them with an excessively costly legal defence until they abandon their criticism. The aim of such lawsuits is not necessarily to secure a legal victory, but, rather, to prevent the media from exercising its right and sacrosanct duty to inform the public about matters of public interest.

The bank had been the subject of a number of FIAU reports and other Panama scandals, allegations that served as the catalyst behind the calling of the 3 June snap general election.

As such, this is a classic case of the media’s right and duty to inform the public about matters of public interest if there ever was one. But not only was the bank seeking to silence the media from here on in, it also demanded full retractions, apologies and the wiping of articles from our website.

This publishing house has never buckled under threat of lawsuits, we have always faced our day in court and many more times than not we have been absolved of libel claims. This case, however, was different.

Were this publishing house to go under, given the sheer weight of the cost of legal proceedings, the dozens of people that this company employs would quickly find themselves queuing for unemployment benefits and searching the classified sections of other newspapers. This is a responsibility that we take most seriously.

Moreover, should the SLAPP prove effective, the country would have lost one of its only truly independent voices. This is another responsibility that we take very seriously.

So, once all was weighed in the balance, which has been done over the last two months in close consultation with our lawyers, the decision to remove some of our online content was taken. We did not capitulate immediately and this is as far as we are prepared to go and against our better judgement due to the above explained overriding considerations. We stand by what we have written.

And although certain stories have been removed from our online presence, they remain forever in the public record, at the National Library, for starters, where every newspaper is required at law to send three copies of every issue published, and where they are freely accessible to the public. These cannot be retracted and they are there forever.

As far as Pilatus is concerned, we have published factual evidence, we have not published conjecture. We have published interviews with the whistle-blower herself. We have published extracts of FIAU reports that are now the subject of magisterial inquiries. This publishing house has also handed documents in our possession over to the inquiring magistrate.

This is another unfortunate case in which money talks. Similar tactics were employed against Daphne Caruana Galizia who, before her assassination, faced 19 simultaneous lawsuits filed against her in one fell swoop and financially crippling pre-emptive garnishee orders.

These are all shades of the same technique aimed at silencing the media.

This is not only about the threats made by Pilatus against this publishing house and the publishers of the country’s other two independent English language newspapers. It is about stopping such abusive practices once and for all.

This latest affront to the media is far from over. Several magisterial inquiries are currently underway and MEP David Casa is pushing the issue further. He has asked the European Commission to investigate the bank’s SLAPP, which he has labelled as abusive and tantamount to harassment of media houses, arguing that the practice of intimidating media houses with multi-million euro lawsuits in jurisdictions outside the EU is unacceptable and requires an EU response.

And in so saying he has hit one of the nails squarely in its head: a bank unwilling to face Maltese justice for offences it alleges were committed in Maltese jurisdiction – and instead resorts to SLAPP lawsuits in other jurisdictions with the sole intention of gagging the media and to erase elements of this country’s historical record – should not be welcome in a supposedly democratic country such as ours in the first place.

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