The way in which the Maltese government brought in legislation against Strategic Lawsuits Against Public Participation (SLAPPs) was “rushed” and there was no attempt to go beyond the minimum that was the European Union’s directive, a Maltese academic who specialises in the field said.
SLAPPs are abusive lawsuits which aim to intimidate and harass the target into silence. An example could be by filing the lawsuit in a foreign jurisdiction with high legal costs, which would financially cripple a journalist or activist with legal costs if they were to contest the claim.
Justin Borg-Barthet is an expert in legislation aimed at preventing SLAPPs. A professor of law at the University of Aberdeen, he is the founder of the university’s Anti-SLAPP Research Hub.
He moved from Malta to Scotland in 2004 to study for a Master’s degree in international and European law at the University of Aberdeen, and then also read for a PhD in private international law at the same university. Ultimately, he went into academia, first at the University of Dundee and then back at the University of Aberdeen.
He had been involved in discussions in the lead-up to the EU’s Anti-SLAPP directive, aimed at tackling cross-border SLAPP cases, and it was transposed into Maltese law last year. Critics argue that the Maltese law does not go far enough, as it does not protect against purely domestic SLAPP cases.
Asked for his take on Malta’s anti-SLAPP law, he described the EU directive as a minimum harmonisation instrument.
“This means that member states are required to adopt the minimum standards, and are at liberty to adopt higher standards than that minimum,” he told The Malta Independent on Sunday.
“The Maltese implementation is a minimum implementation. Insofar as the EU legislation is a significant improvement on the absence of legislation, then the Maltese legislation equally is a sound contribution to the legal landscape of freedom of expression in Malta.”
However, Borg-Barthet said, “it was a very rushed process. There was no consultation on the specific draft and there was no attempt to go beyond the bare minimum”.
The government had time to adopt primary legislation to implement that directive, but instead chose to adopt that legislation through a legal notice, he adds. “What they were able to do through a legal notice is transpose what there is in the directive, and while there is a margin of appreciation, they cannot go significantly beyond that on the basis of that authority. To take it further, a serious process of consultation would have been required, drawing on the best elements of the EU directive, the recommendations from the Council of Europe and the EU Commission, along with international best practices. With that, one might have expected the removal of the distinction between domestic and cross-border cases, because Malta has not legislated on purely domestic SLAPPs.”
While the definition of cross-border claims is very broad, because essentially any international element should bring a matter within the scope of the instrument, an unnecessary and unhelpful distinction was made which will require further litigation in Maltese courts in order to identify the line where a domestic and a cross-border case lies, he said.
“Given that the threat of SLAPPs is credible because of the cost of litigation, you would expect a government which sought to safeguard freedom of expression to remove elements of the legislation which require litigation over the precise factual and legal context.” The Maltese government could have done that had it chosen to, he adds, “and it is something that the Maltese government had been promising for a long time and included in its own draft (referring to a draft anti-SLAPP bill prior to the EU directive being issued). They would also, I would suggest, have removed the distinction between manifestly unfounded claims and other abusive lawsuits”.
He described the impact of SLAPP cases on journalists. “In every line of work, people go to work, do their job and then go home, usually being able to carry on with their lives without worrying about being sued. For journalists, doing their job effectively is more likely to result in being subjected to a lawsuit than if they didn’t bother to do their job at all. So in journalism the notion has been normalised that you do your job and therefore you are sued. That should not be the case.” The function of libel laws is to enforce the rights of an individual. The way in which SLAPPs operate, are to use the process of pre-litigation and certain litigation techniques to achieve abusive outcomes.”
Addressing possible criticism of anti-SLAPP legislation, he said that “anti-SLAPP legislation does not for a second alter the substance of defamation law. It doesn’t alter the substance of copyright law or any other sort of claim that could be brought against someone engaging in public participation. What it does do, is enable courts to dismiss unmeritorious and abusive claims at an early stage. No journalist who is defaming another person would be protected by legislation which is designed to protect meritorious claims which are brought without abuse. If anyone is concerned that a journalist would be at liberty to defame anyone, the response to that is that if a claim has any merit and is brought in a manner which is not abusive, then that claim will be seen through in the usual way. With anti-SLAPP law, unmeritorious claims will be dismissed early which would also lift some of the burden off the courts”.
In 2017, a number of Maltese news organisations had altered or removed some articles when they were threatened with financially crippling lawsuits in foreign jurisdictions.
This led Borg-Barthet to decide to do something. “What I could do was to deploy my expertise in transnational and European Union law to do something for press freedom,” he said.
He developed contacts with international NGOs including Article 19, the European Centre for Press and Media Freedom, the Committee to Protect Journalists and others.
These organisations and others eventually set up the Coalition Against SLAPPs in Europe. Borg-Barthet said that he provided advice to the coalition, and subsequently to the European Parliament. “I was also involved through my role as a drafter of the EU Model Law under Linda Ravo’s leadership and with Xandra Kramer.” This model law was used as a basis for the discussions for the EU directive that was eventually drafted. He had also been asked to be a member of the European Commission’s expert group and he and a colleague of his, Francesca Farrington, gave further advice to the European Parliament “which helped shape the key features at the end of the trialogue negotiations between the member state governments, the EU Parliament and EU Commission”, on anti-SLAPP legislation.
In an article co-authored by Borg-Barthet and Farrington, they described the EU’s Anti-SLAPP Directive as “a partial victory for rule of law advocacy in Europe”.
“The position of the Coalition Against Slapps in Europe, which was reflected in the Model EU law that had been drafted, is different than the directive in many important respects,” he said, explaining why he described the directive as a “partial victory”.
EU directive is ‘slightly constrained’
“The scope of the EU instrument is slightly constrained, in that it only takes in cross-border cases, although that definition of cross-border cases is quite broad.” In addition, he said, the directive makes a distinction between manifestly unfounded claims and other abusive claims. “Manifestly unfounded claims benefit from the remedy of early dismissal, which is a key feature of anti-SLAPP legislation. Other abusive claims don’t. So there are other remedies, but early dismissal isn’t available under the directive.”
He said that EU member states, including Malta, are at liberty to extend the remedy of early dismissal to all abusive claims. “States are also at liberty to extend the scope of the directive’s protections to matters which aren’t cross-border, and also to claims which aren’t based on Civil law. I’m not at liberty to reveal what discussions were had within the Commission’s expert group, but the model law that was drafted is in the public domain and our position is there.”
Asked to provide an example of cases which are not manifestly unfounded, he said: “It is highly unusual for a claim to be drafted in a way for a court to say that there is absolutely nothing for the court to consider.” He said that it is very difficult to prove that a claim is manifestly unfounded, “whereas it is often clear when there are elements of abuse such as jurisdictional wrangling, trying to go before a court of a State which has no real connection to a claim, for instance”, which he said would not fall under the term “manifestly unfounded”.
Another example he gave was filing multiple lawsuits over the same issue, “or trying to bring a breach of trademark claim for instance of a bank in relation to a story which is not complimentary towards that bank”, which he also said are examples of cases that would not fall under the definition of manifestly unfounded, “but the intention would be to suppress reporting of matters of public interest”.
Another example, he said, is that if a claim is withdrawn at a point at which potentially uncomfortable evidence is to be considered, the imputation that it was indeed an abusive lawsuit against public participation is one which would be merited.
As for whether he can quantify the SLAPPs that occurred in Europe, he said that one of the main problems with trying to do so is that “most of this operates beneath the surface”.
“There is no accurate data concerning how many SLAPP cases there are,” he said, also adding that when legal threats are made it does not necessarily mean that a court case is filed.
“There have been questionnaires with journalists and other people who participate in public life which show that most journalists receive legal threats as a matter of course. Also anecdotally we know that even major international news organisations adjust their reporting, or sometimes withhold factual reporting, because they know that the party about whom they are reporting is particularly litigious. What became very apparent is that the problem in Malta was far from unique, and that internationally this happens to varying degrees everywhere. It is a global problem.”
“What we know is that journalists tend to be the primary targets of SLAPP cases, but others are targetted as well. What we also know is that it is usually private entities which will bring these claims, but also very often those private entities have some sort of connection to public life, whether because of the extent of their economic impact or because of their connections to politics, and usually both.”