Malta: defamation no longer a crime - but new law has critics

By Emil Weber 

A new law has decriminalised libel in Malta. It follows months of criticism of the southern European country over media freedom, especially after the murder of investigative journalist Daphne Caruana Galizia in 2017, who was attacked with dozens of Strategic Lawsuits Against Public Participation (SLAPP) cases.

The Media and Defamation Act was approved by the Maltese House of Representatives on 17 April and it is still to be published in the Official Gazette and enter into force. The House said in its website that defamation “shall henceforth only be a civil tort”.

Keith Caruana, a press officer for the permanent representation of Malta to the European Union, had said in a press release on 11 April that the bill “sets an unprecedented standard of journalistic freedom” and allows for more “journalistic freedom and a stronger democracy”. 

The Maltese authorities say that in addition the law avoids “disproportionate restrictions on journalists” when it comes to libel. Specifically, it establishes a ceiling of 11,640 euros for court compensation damages, while at the same time increasing alternative “means of dispute resolution”.

Michael Zammit Maempel, a media lawyer in Malta, told the European Centre for Press and Media Freedom (ECPMF) that the new law “eliminates the possibility of garnishee orders being imposed in connection with libel suits”. (A garnishee order is a court order that has been made in order to allow creditors to recover debt from third parties). 

In recent years, the late investigative journalist Daphne Caruana Galizia had faced several extensive lawsuits including a libel writ from a Government minister. 

“As Daphne’s case demonstrated last year, the effects of this can be debilitating on journalists, especially those working solo or without the backing of a financially sound media house”, Maempel said.

Caroline Muscat, editor of The Shift News, told the European Centre for Press and Media Freedom (ECPMF) that the government is “trying to create the impression it is addressing the problems related to press freedom in the country, following international scrutiny of the context in which journalists in Malta are forced to work”.

Anti-SLAPP amendments not included 

During the sponsorship procedure of the new law, opposition Member of Parliament Jason Azzopardi who also represents Daphne Caruana Galizia’s family in the judicial investigation of her murder, had proposed the inclusion of amendments that would prohibit enforcement in Malta of SLAPP court decisions taken elsewhere.

Recent SLAPP cases and threats to use them involved Daphne Caruana Galizia and The Shift News. 

“My bill would have stopped completely any possibility of anyone attempting to enforce in Malta a judgement obtained abroad in a SLAPP law suit”, Azzopardi told ECPMF.

The government brought up silly excuses to vote against it."

Caroline Muscat, The Shift News editor, said that the SLAPP threats in Malta “are coming from only two companies - Pilatus Bank and Henley and Partners - which are at the centre of allegations of corruption involving the top rank of government”. 

However, Michael Zammit Maempel said that concerning the SLAPP amendments “the situation is a bit more complex than either side [government and opposition] is making it out to be”.

“Malta cannot legislate in isolation while there are already EU laws such as the Brussels regulations and other international conventions that determine the way in which judgements can be enforced across international borders”, Maempel said. “Furthermore the principle of comity [adoption of the laws of other national territories] would dictate that if Malta had to unilaterally declare that foreign judgements are not enforceable in its territory, then there is every reason to expect other countries to impose a reciprocal restriction of Maltese judgements being enforced in their respective territories”. 

According to Maempel, until anti-SLAPP legislation is taken on by the EU as a whole “it remains a good idea, but one that is not easily workable in reality”.

In February 2018 the European Parliament members had called upon the European Commission to act on anti-SLAPP cases at the European level.

'Colonial' registration law

Michael Zammit Maempel told ECPMF that the Media and Defamation Act is not technology-neutral like the Press Act in Malta. 

“(It) talks of websites, editors of websites, and persons who leave statements on websites. In this sense, it is clearly referring to situations with which we are all familiar today, but it does not cater for the future. It doesn’t, for instance, contemplate online content in the form of wikis, or content that is crowd-sourced or -based”, Maempel said. “Exactly a year ago, I was one of the persons who met up with the drafters of this law, and pointed out this flaw. They solved the problem by removing their definition of the internet, but the law remains anchored in today’s technology and will inevitably face problems in future once technology outpaces the law”.

He said another cause for concern is the role of the Media Registrar. “This registration system is deeply anachronistic in a modern democratic state. Its origins in the Press Act date back to a time when Malta was still a British colony, and the colonial government therefore had an interest in keeping the press under some sort of control”, Maempel said. “It has no role to play in today’s media world, where publishing houses are all limited liability companies, and it is therefore deeply unfair to force an employee of those companies (the editor of a newspaper or tv/radio station) to take the responsibility of putting their name on a register, when they ultimately have no economic control over the publishing house they represent”.  

"Chilling effect on editors"

“This causes an inevitable chilling effect, because an editor who is expected to stand on  the frontline for a media house that ultimately controls the agenda (because it ultimately controls the finances) is going to be more cautious in what she or he has to say. The system for registration of editors should have been dismantled entirely - and not perpetuated”, Maempel said.

Malta was recently ranked 65th in the 2018 World Index of Media Freedom, issued by Reporters Without Borders; it was ranked 47^th in 2017.