With 546 votes in favour, 47 votes against, and 31 abstentions, a European anti-SLAPP directive known informally as ‘Daphne’s law’ in honour of Daphne Caruana Galizia, officially became the law of the land following the European Parliament’s approval on Tuesday.
SLAPPs – Strategic Lawsuits Against Public Participation – are lawsuits which are manifestly unfounded and are meant to financially and logistically cripple public interest journalism and activism, and are often used by individuals, private entities, and governments to target the individuals who expose their affairs and discourage further investigation from occurring.
In a press conference held after the vote, Tiemo Wölken, the German MEP who also served as the dedicated rapporteur for the EU’s new rules on the protection for journalists and media outlets from SLAPP suits (featured photo), praised the Parliament’s overwhelming support for the law.
“Some referred to this law as Daphne’s law, and I think it is important to mention it here as we are standing in a press room which is named after Daphne. It is really a great moment, and I think that we achieved an additional layer of protection for journalists,” Wölken said, highlighting in particular how the fact that European legislation now has a formal, legal definition of what a SLAPP is means that there is more legal certainty for defendants fending off SLAPPs.
Following a protracted series of negotiations with the European Commission, which had attempted to weaken several key aspects of the directive when it was first proposed, the European Parliament managed to finally approve the final version of the law earlier today. In a press statement published on Tuesday, the European Parliament stated that the additional protection of press freedom enshrined by the new directive will be applicable “to all cross-border cases except when both the defendant and claimant are from the same EU country as the court or when the case is only relevant to one member state”.
The directive provides for an early dismissal mechanism if a legal case is deemed to be unfounded, further envisaging the possibility of asking the claimant to pay the estimated costs of proceedings and damages. The burden of proof is, in such a case, inverted onto the claimant, who would need to then substantiate their claims in front of the court. In addition, in cases where claimants file a lawsuit in a jurisdiction where the proceedings are deemed to be unfounded or abusive, judgements against European individuals or institutions who are on the receiving end of such unfounded or abusive lawsuits would not be recognised.
“EU governments will also make sure that potential victims of abusive lawsuits can access information in a single place on procedural safeguards and remedies, including legal aid and financial and psychological support. Member states will have to ensure legal aid is provided in cross-border civil proceedings. They should also publish all final judgments in SLAPP cases and gather detailed data about them,” the press statement adds.
While Daphne’s law is yet to officially enter into force at European level – it only becomes law once it is formally published in the EU’s Official Journal – member states will have a two-year grace period in which to transpose the rules into their national systems.
It is no secret that Malta’s government has an abysmal track record when it comes to press freedom, and that this track record does not bode well for how the process of transposing this directive into national law will go.
Earlier this month, Malta trumped all competition in a mock awards ceremony, officially being crowned as Europe’s SLAPP capital. The overwhelming majority of the SLAPP cases recorded in Malta are all linked with The Shift’s ongoing court battle against the government following the latter’s blanket refusal of FOI requests about any and all contractual arrangements it has with the co-owner of MaltaToday, Saviour Balzan, who is known to have forged cosy ties with the Labour government.
To make matters worse, three of the biggest major independent news outlets in Malta – including Balzan’s own MaltaToday, the Times of Malta, and the Malta independent – banded together to form an association of media owners that includes political party propaganda outlets. The association was widely criticised for its failure to disclose any information about its members or its operational structure, and the editorial branches of the three major news outlets which joined the association all refused to acknowledge their direct links with political party outlets.
Given the government’s track record with the deployment of abusive legal action to silence dissidence, a request for comment about the new directive was sent to the Daphne Caruana Galizia Foundation. Besides being instrumental in the daunting battle against the corrupt interests that claimed Daphne’s life, the foundation has also been active in all issues related to press freedom at large, including when it comes to lobbying for the European Parliament’s latest media freedom directive.
In a statement issued shortly after the European Parliament’s press conference about the new directive, the foundation called on the Maltese government to transpose it into law, arguing that the legislation must be accompanied by measures such as specialised training for members of the judiciary and lawyers.
In response to a question about whether the Daphne Foundation believes that the new directive will be enough to force the government to limit its use of SLAPPs against independent media, the organisation argued that the directive that was published today is the minimum standard and that “Malta and other member states can and should go above and beyond to ensure the protection is effective”.
“The provisions of the anti-SLAPP directive still need to be transposed into Malta’s law and will apply to cases that have a cross-border element, including cases where the plaintiff and the defendant are both domiciled in Malta. The EU law will need to be complemented by legislation to cover purely domestic cases, that is, cases which have no cross-border element,” Corinne Vella, the foundation’s media relations officer, told this website.
In fact, during today’s press conference, when asked about whether he is concerned about the fact that member states have quite a bit of wriggle room when it comes to the transposition of Daphne’s law, Wölken admitted that member states cannot be forced to transpose this legislation and that the European Parliament can only closely monitor the situation.
“I am proud of the text we achieved, it was a very intense and tough negotiation. We received a lot of assurances from many member states that they will not only cover cross-border SLAPP cases – they also promised to extend the scope to purely national cases, so I honestly believe that this is only a common minimum standard and that many member states will add more protection for national cases,” Wölken said.
The Daphne Foundation further pointed out that in September 2021, Malta’s government promised to be the first to introduce anti-SLAPP legislation. Last year, the Maltese government also promised to publish a white paper on media reforms, including anti-SLAPP protection.
While the Maltese government made plenty of promises, the white paper never materialised and has not been mentioned in public since. Questions have been sent to the justice ministry’s communications coordinator to determine what the status of the white paper is.
“With robust legislation in place, everyone – including members of government – will find it difficult to harass media using abusive lawsuits. Until that happens, abusers are able to weaponise the law to silence their critics,” Vella concluded.
