Issue link: https://maltatoday.uberflip.com/i/1517228
13 maltatoday | SUNDAY • 10 MARCH 2024 NEWS government's lap is in line with EU directive ing the rights of persons engag- ing in public participation may take part in those proceedings, either in support of the defend- ant or to provide information. Malta: This aspect of the di- rective is not specifically covered in the anti-SLAPP proposal put forward by the Media Experts Committee. However, Malta's Code of Organisation and Civil Procedure (Article 960) allows for the intervention of an inter- ested party in a lawsuit if that party can prove its interest to the court's satisfaction. Admission to the case shall not suspend proceedings. 3. Security for procedural costs EU: The courts will have the power to require the claimant to provide security for procedur- al costs, or for procedural costs and damages, if it considers such security appropriate because of elements indicating the action could be abusive. Malta: This aspect is not cov- ered in the new proposals put forward by the Media Experts Committee. Malta's procedur- al laws require a party entering an appeal from a court decision to lodge security for costs, not damages. However, no similar provision exists at first instance. But the anti-SLAPP proposal does allow the court to declare that costs should be borne by the complainant and even award damages to the defendant, if the case is deemed abusive. The court could also penalise the complainant. 4. Early dismissal of case EU: The courts should be em- powered to adopt an early deci- sion to dismiss, in full or in part, SLAPP proceedings if these are manifestly unfounded. Malta: The Maltese proposal does allow the court to dismiss at a preliminary hearing, a case if it is deemed to be manifestly unfounded. The court can make such a decision after it is peti- tioned by the defendant or on its own motion. But the proposal also goes one step further than the EU directive since a decision as to whether a case is abusive can also be taken at any stage of the proceedings. The propos- al made by the Media Experts Committee makes no mention as to whether a case can be dis- missed in full or in part. 5. Set time limits EU: The law should set time limits for the exercise of the right to file an application for early dismissal. The time limit shall be proportionate and not render such exercise impossible or excessively difficult. Malta: The Maltese proposal sets no time limits within which the right to file an application for early dismissal can be made. In- deed, it can be superfluous since the court on its own motion can at any stage dismiss proceedings if it deems they are abusive. 6. Stay of main proceedings EU: If the defendant applies for early dismissal, the main pro- ceedings are stayed until a final decision (on appeal) on that ap- plication is taken. Malta: This is already catered for in Maltese jurisprudence, where a court would refrain from continuing proceedings on the merits of a case until a final decision is taken on an appeal filed by any one of the parties. 7. Accelerated procedure EU: An application for early dismissal should be treated in an accelerated procedure, taking into account the circumstances of the case and the right to an effective remedy and the right to a fair trial. Malta: There is no particular provision setting time frames or proposals for an accelerat- ed procedure in the draft put forward by the Media Experts Committee. The EU directive does not set down any particular timeframe but as a general rule a court must always act expedi- tiously with respect to the fun- damental right for a fair trial that speaks of justice being delivered in a "reasonable time". 8. Burden of proof EU: When the defendant ap- plies for early dismissal, the burden of proof is shifted onto the claimant to prove that their claim is not manifestly unfound- ed. Malta: The Media Experts Committee's proposal takes this on board. 9. Right to appeal EU: A decision to refuse or grant early dismissal should be subject to appeal. Malta: The right to appeal a court's decree is already part of Malta's existing procedural laws and thus any decision in favour or against early dismissal by the court can be appealed. 10. Award of costs EU: A claimant can be ordered to bear all the costs of the pro- ceedings, including the full costs of legal representation incurred by the defendant, unless costs are excessive. Malta: The Maltese propos- al allows the court to order the claimant to pay all legal costs if the action is deemed to be man- ifestly unfounded. The proposal makes no qualification as to the amount of costs but Maltese law allows the defendant to recover judicial fees and costs as offi- cially taxed by the Registrar of Courts. 11. Compensation of damages EU: The law must ensure that a natural or legal person who has suffered harm as a result of abu- sive court proceedings against public participation is able to claim and obtain full compensa- tion for that harm. Malta: The Maltese proposal allows the court to award dam- ages to the defendant. The court has discretion to determine the amount of damages. 12. Penalties EU: The courts should have possibility to impose effec- tive, proportionate and dis- suasive penalties on the party who brought those proceedings deemed to be abusive. Malta: The Maltese propos- al allows the court, at its own discretion, to impose 'dissua- sive penalties' on the claimant that are payable to the defend- ant. The proposal does not set amounts. 13. Protection against third country judgments EU: A third-country judgment can be refused as manifestly contrary to public policy if those proceedings would have been considered manifestly unfound- ed or abusive if they had been brought before the courts of the Member State where recogni- tion or enforcement is sought and those courts would have ap- plied their own law. Malta: The Media Experts Committee proposal empowers the domestic court to dismiss any application for the enforce- ment of a foreign judgment in Malta if this is considered to be manifestly unfounded and would have constituted abusive action had the case been filed in Malta. The dismissal will be possible because it is deemed to be contrary to public policy. The proposal does not only speak of libel proceedings but any civil case seeking damages. The Maltese proposal also makes a special provision that allows the domestic court to dismiss a judgment obtained in a foreign jurisdiction if it deems that the execution will breach freedom of expression as pro- tected in the Maltese legal sys- tem. The Media Experts Commit- tee also included a clause stat- ing that in its deliberations to dismiss a foreign judgment, the domestic court should make no negative inference if the defend- ant had absented themselves from proceedings in the foreign court. 14. Compensation from foreign judgments EU: The defendant may seek compensation of damages and costs in the domestic court for cases initiated in a foreign juris- diction but which would have been written off as abusive. Malta: The Maltese propos- al allows the domestic court to condemn the claimant to pay damages to the defendant and all legal costs. The court will also, at its own discretion, impose a dis- suasive penalty on the claimant, which will be paid to the defend- ant. The author was a member of the Media Experts Committee. The views expressed in this article are his own. This article focusses only on the anti-SLAPP provisions of the proposed reform, which includes many other provisions intended to protect journalists and campaigners in the exercise of freedom of expression. The Media Experts Committee headed by retired judge Michael Mallia (first on left) presented its final report to Prime Minister Robert Abela and Justice Minister Jonathan Attard in July 2023. The report contains wide-ranging reforms to protect journalists, including anti- SLAPP provisions that are broadly in line with the EU directive. Strategic law suits against public participation (SLAPP) are normally filed by powerful bodies and individuals against journalists, human rights campaigners, activists and academics who comment or report on issues of public interest with the intention of forcing these voices to shut up or give up. Very often they instituted in foreign jurisdictions in an attempt to cripple defendant with exorbitant legal and procedural costs.