Issue link: https://maltatoday.uberflip.com/i/1516411
3 maltatoday | SUNDAY • 25 FEBRUARY 2024 NEWS MATTHEW VELLA mvella@mediatoday.com.mt Malta can refuse Steward SLAPP: EU Court opinion in Real Madrid defamation MALTA can refuse the enforce- ment of SLAPP lawsuits that demand exorbitant damages to be paid out when these are de- cided by other courts in Euro- pean Union member states. In a case that mirrors the SLAPP lawsuit filed against MaltaToday by hospital priva- teers Steward Healthcare in a Spanish Court, the latest opin- ion from the Advocate General of the European Court of Jus- tice, shows that enforcing on- erous court damages ordered by foreign courts, should be re- fused. According to the Advocate General, an order to pay dam- ages the amount of which is "manifestly unreasonable" has a deterrent effect that affects both journalistic freedom and freedom of information. The opinion was declared in the case brought to the EU Court by the Real Madrid foot- ball club against a decision by the French Court of Cassation not to enforce a Spanish court ruling for damages to be paid by the Le Monde publisher. Almost 10 years ago, the news- paper Le Monde and one of its journalists were ordered in Spain to pay a penalty for the publication, in 2006, of an ar- ticle claiming that there were links between the football club Real Madrid and Dr Eufemiano Fuentes, the head of a doping ring in the cycling world. Ruling that the article was de- famatory and harmed the club's reputation, the Spanish courts ordered the newspaper compa- ny Société Éditrice du Monde to pay a fine of €390,000 and the company and its journalist, jointly and severally, to pay a fine of €33,000. In a similar case, Steward – whose multi-million deal in Malta was rescinded by a Mal- tese judge – has filed a damag- ing lawsuit against MaltaToday and journalist Matthew Vella, in Spain, alleging defamation from a report on allegations made by short sellers Viceroy, and de- manding €25,000 in damages from the newspaper apart from financing the court decision's announcement in the Financial Times, Le Soir, and the Wall Street Journal. The prohibitive costs of any lawsuit in a foreign court, made in the wake of Steward Health- care's call to the Maltese gov- ernment to have Vella himself investigated over his report back in February 2023, amount to a SLAPP action (strategic lawsuit against public participa- tion). Real Madrid vs Le Monde Real Madrid applied for en- forcement of those Spanish judgments in France but, in 2020, the Paris Court of Ap- peal dismissed its application, having recourse to the public policy clause: according to that court, being ordered to pay that penalty has a deterrent effect on the involvement of journalists and media organisations in the public discussion of matters of community interest, thereby breaching freedom of the press and freedom of expression. Hearing the case, the French Court of Cassation then asked the European Court of Justice whether, the freedom of the press guaranteed by the Char- ter of Fundamental Rights of the European Union consti- tutes a fundamental principle the breach of which can justify recourse to the public policy clause. Against public policy In his Opinion, First Advocate General Maciej Szpunar consid- ers that a member state in which enforcement of a judgment is sought, must refuse or revoke enforcement where it would give rise to a manifest breach of freedom of expression. The Advocate General also said the risk of a deterrent effect going beyond the situation of the person directly concerned, justifies refusal of enforce- ment because this would be a manifest and disproportionate breach of freedom of the press in the member state. In this sense, the overall sum that a natural person is re- quired to pay must be consid- ered "manifestly unreasonable where that person would have to struggle for years to pay it in full or where that sum is several dozen times the standard mini- mum salary in the member state concerned." The Advocate General also said that the amount of dam- ages which media companies are ordered to pay "must not be such as to threaten their eco- nomic foundations". "Given its importance in a democratic society and a State governed by the rule of law, freedom of the press is an es- sential principle of the EU legal order the manifest breach of which may constitute a ground for refusal of enforce- ment. Recourse may be had to public policy only in exception- al cases. That is the case where a party has been ordered to pay compensatory damages and enforcement of the judgment is likely to have a deterrent ef- fect on the exercise of that free- dom in the Member State con- cerned." Letter to Malta PM Following Steward's SLAPP action, Mediatoday managing director Saviour Balzan and MaltaToday Executive Edi- tor Kurt Sansone wrote to the Prime Minister of Malta, alert- ing the government of the case against the media organisation. "This is a serious matter that undermines our right to exer- cise free journalism," they wrote in their letter. "In light of the proposals made by the Committee of Media Experts last year, and other requests made to the govern- ment by the Institute of Maltese Journalists and other Maltese and international organisations for the introduction of an an- ti-SLAPP law, it is now oppor- tune that the Maltese govern- ment kick-starts this process as soon as possible to ensure the Maltese media and journal- ists have legal protection from SLAPP cases," the letter reads. Sansone said the action insti- tuted by Steward in Spain not only threatened the journalist's right to freedom of expression but risked stifling public partic- ipation in a debate of national interest. "We stand four-square behind Matthew Vella, who was only exercising his right to bring to the public's attention a matter that was pertinent to the ongoing controversy in Malta." Malta can invoke public policy clause to refuse SLAPP lawsuits being enforced against Maltese newspapers, ECJ's Advocate-General says in Le Monde defamation lawsuit An opinion by the Advocate General of the European Court of Justice on a defamation case brought by Real Madrid against Le Monde, says that enforcing of onerous court damages ordered by foreign courts should be refused. Steward Healthcare has filed defamation proceedings against MaltaToday in a Spanish court in a case that threatens freedom of expression and the media house's survival.