A Legal Solution to SLAPP – Press Release 2.2.2018
A Maltese solution protecting against SLAPP and Libel Tourism is not only required, but legally possible.
Malta needs to nurture freedom of speech and ensure that appropriate safeguards are in place to secure such fundamental rights.
Friday, 2nd February, 2018
The Malta Information Technology Law Association (MITLA) is following the discussion in relation to SLAPP (Strategic Lawsuits against Public Participation) and notes the Private Member’s Bill presented to Parliament by the Nationalist Party.
A Maltese solution protecting against SLAPP and Libel Tourism is required and legally possible but requires a reassessment of our fundamental right to freedom of expression in today’s digital world.
A Maltese solution should recognise that freedom of speech is a fundamental human right enshrined in Article 41 of the Constitution of Malta and other applicable international treaties and conventions, and the protection of such right is necessary both offline and online.
The obstruction or interference on the rights of journalists and persons habitually working in this field, through the filing (or threat of filing) of foreign defamation lawsuits has a chilling effect on the right to freedom of expression and attacks the right of the Maltese public to receive information on matters of public importance. This right is itself enshrined in Article 19 of the Universal Declaration of Human Rights and Article 10 of the European Convention of Human Rights, amongst others.
Foreign defamation lawsuits risk supressing such fundamental rights, especially where the cause of action on which the foreign judgment is based is repugnant to the public policy of Malta. This is itself exacerbated when the foreign court is a seriously inconvenient forum for the action. MITLA believes that SLAPP is a matter of public concern and therefore should be a matter of Maltese public policy.
MITLA notes that there are no harmonised laws, at a European, US Federal or international level regarding SLAPP and that the situation in the US is still very fragmented on this front. Any anti-SLAPP legislative intervention must ensure that the rights of both parties in a defamation suit have to be respected and protected. On the one hand, protecting citizens from improper intimidation, and on the other safeguarding the right of access to the courts.
As established by the 2008 Supreme Court of Rhode Island (US) in Palazzo v. Alves[1]:
“By the nature of their subject matter, anti-SLAPP statutes require meticulous drafting. On the one hand, it is desirable to seek to shield citizens from improper intimidation when exercising their constitutional right to be heard with respect to issues of public concern. On the other hand, it is important that such statutes be limited in scope lest the constitutional right of access to the courts (whether by private figures, public figures, or public officials) be improperly thwarted. There is a genuine double-edged challenge to those who legislate in this area”.
MITLA clarifies however, that the most pressing concern from a Maltese point of view is not primarily related to SLAPP even though such issue is indeed relevant in a local context. The prime threat currently being experienced in Malta is SLAPP originating from foreign jurisdictions, embodied in libel tourism: a method of forum shopping for libel suits.
Whilst no federal law exists in the United States relating to SLAPP, the same cannot be said with respect of libel tourism. Following a 2007 New York Appeals Court Decision in Ehrenfeld v Mahfouz[2], the State of New York introduced an amendment to their laws of procedure which included direct references to the ability for a court in New York to recognise a defamation judgment obtained from a foreign court, including courts in other US states. This initiative was then adopted at a US Federal level with the enactment in 2010 of the “Securing the Protection of our Enduring and Established Constitutional Heritage Act” or SPEECH Act[3] aimed “to prohibit recognition and enforcement of foreign defamation judgements” and applying the American constitutional heritage of the First Amendment with respect to foreign defamation judgments. It is a rare that a law in the US garners a unanimous vote in both houses of Congress, but the passage of the SPEECH Act demonstrated that Republicans and Democrats agree on at least one thing: foreign libel laws should not chill U.S. speech. Could Malta act with similar single-purpose on such matter?
MITLA believes that any Maltese approach should be built on the same philosophy, that is ensuring that our constitutional provisions vis-à-vis freedom of speech are applied and shield Maltese persons from threats emanating or arising from situations of SLAPP and, most importantly, libel tourism. This should be a matter of public policy and there should be no doubt that the Maltese Constitution is the crystallisation of the public policy of our nation.
Reflecting the principles which drive the 2010 US SPEECH Act, a Maltese legislative intervention would primarily consider the introduction of a two-part test: (i) that no Maltese court should recognise a foreign defamation judgment unless the Maltese court determines that the defamation law applied in the foreign jurisdiction provided at least as much protection to freedom of speech as would be provided under the Maltese Constitution and other international conventions and treaties to which Malta is a party; and (ii) even if the defamation law applied in the foreign defamation judgement did not provide as much protection as our Constitutional right to freedom of speech, the party opposing recognition or enforcement in Malta would have been found liable for defamation by a court in Malta through the application of Maltese defamation laws and the application of our constitutionally protected rights. The obligation to show that the two-part test is met in front of the Maltese courts should be on the plaintiff requesting the recognition or enforcement of such foreign judgment in Malta.
Furthermore, in the application to have the foreign defamation judgment recognised or enforceable in Malta, the plaintiff would need to prove that the exercise of personal jurisdiction by the foreign court is consonant with the Maltese procedural rules regarding jurisdiction, amongst others.
Additionally, any Maltese person against whom a foreign defamation judgement is entered should be recognised the right at law in Malta to bring an action in front of the Maltese courts seeking that such foreign defamation judgment is repugnant to the rights enshrined in our Constitution and applicable laws and the right to seek damages.
Ultimately, the driving force behind potential legislative interventions should not be limited to the enforcement of foreign defamation judgements against Maltese persons but widened in scope to provide clarity to our appreciation of the fundamental right to freedom of expression as enshrined in international conventions as our Constitution. This constitutional shield can then serve as the basis of any legislative work regarding the recognition in Malta of foreign defamation judgements.
MITLA will be in the coming weeks organising a workshop to discuss the current local scenario surrounding SLAPP, libel tourism and freedom of speech and will be inviting journalists, media houses as well as representatives from Government and the Opposition for an informed debate aimed at reaching a wider consensus on how Malta can effectively further nurture and protect our right to fee speech. Further details about this event will be communicated shortly.
[2] https://www.law.cornell.edu/nyctap/I07_0173.htm
[3] https://www.gpo.gov/fdsys/pkg/PLAW-111publ223/content-detail.html
