The Malta Independent 26 September 2021, Sunday

SLAPP lawsuits: Parliament cannot prevent foreign lawsuits but Maltese courts could limit damages

David Lindsay Sunday, 31 December 2017, 11:30 Last update: about 5 years ago

The new menace of SLAPP lawsuits being faced by the Maltese media cannot be stopped by Maltese legislation, but the Maltese courts could limit the damages awarded by foreign courts in such cases, Justice Minister Owen told The Malta Independent on Sunday.

Malta’s three English language newspapers have all been slapped with potentially financially crippling lawsuits to the tune of tens of millions of euros, as has a news website just this week. Strategic Lawsuit Against Public Participation (SLAPP) lawsuits can be defined as a lawsuit or a legal course of action that is primarily intended to cause a chilling effect on critics by burdening them with costs and expenses.

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Contacted yesterday, Bonnici told this newspaper that the recent Media and Defamation Bill, which was unanimously approved by Parliament in its second reading stage, will do away with various criminal provisions such as criminal libel and other ancillary criminal offences that serve to curb freedom of journalistic expression.

The Bill, he said, will also prevent SLAPPs from being levelled against the Maltese media in Malta.

As the minister explains: “This piece of legislation will also effectively forbid the use of SLAPPs here in Malta: for instance the Bill will do away with precautionary warrants against journalists and with the practice of filing multiple law suits against a journalist on basically the same facts.

“Also, the amount of damages in civil libel cases has not only been capped, but the maximum amount which can be awarded will remain untouched.”

But Bonnici stresses: “What our Parliament cannot do, however, is prohibit a person from suing the Maltese media in a foreign court.

“Should that happen, the issue would be whether a judgment granting large amounts in damages would be unenforceable in Malta for public policy reasons. That would be something which the Maltese Courts would have to decide on [after a lawsuit against a Maltese media house is lost in a foreign jurisdiction and claims are made in the Maltese courts to have the damages awarded].

SLAPP lawsuits are 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.

Most recently, Pilatus Bank has threatened The Malta Independent, The Times of Malta and MaltaToday with SLAPPs over their reportage in the lead-up to the last general election. More recently, Henley & Partners, the concessionaires of the Individual Investor Programme, has threatened theshiftnews.com with a SLAPP lawsuit over an article carried about allegations against it in Grenada. As such, the trend appears to be growing.

All these cases could have been filed against the aforementioned media outlets in the appropriate jurisdiction, in the Maltese courts if proper redress was being sought, but the threats to sue in foreign jurisdictions, such as in the US or UK, are clearly aimed at stifling the media into submission.

MEP David Casa is pushing the issue further. He has asked the European Commission to investigate the SLAPP lawsuits levelled against the Maltese media, 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-wide response.

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