In her final interview before her death, Maltese journalist Daphne Caruana Galizia spoke of how she had to attend court that week to face 19 libel cases that had been filed against her by the same person.
It had cost her €7,000 just to submit a response to each case, she recalled. The Maltese legal system meant that anyone with enough money and who didn't like her reporting – she wrote about corruption for the Sunday Times of Malta, the Malta Independent and on her blog Running Commentary – could use that financial power to try to stop her doing it by dragging her through the hassle and expense of the courts.
"You have a situation where laws . . . designed to protect people who are genuinely hurt are being used as a tool of abuse and aggression by people in power," she told the interviewer, who spoke to her for a study about the intimidation of journalists conducted by the Council of Europe.
Beyond the difficulty that the court cases posed to her personally, they also served a wider function, Caruana Galizia told the interviewer. They had a silencing effect, encouraging self-censorship by making an example of those who spoke out. She described the toll it was taking on her – “churning, churning nerves all the time”.
“My biggest concern is that because people see what happened to me, they don’t want to do it. It’s scared others off,” she said.
Abusive lawsuits
Ten days after the interview, on October 16th, 2017, Caruana Galizia was assassinated by a car bomb, in what her family view as the culmination of years of intensifying attacks on her, ranging from abusive graffiti to an attempt to burn down the family home. The court cases were a part of it, her son Matthew said at a recent event in Brussels: she was facing more than 40 lawsuits at the time of her death.
“One of my first experiences as a child, in the world of journalism in which my mother worked, was my father telling me that when a policeman comes to the house, not to take any documents that they’re offering me,” he told the event. “Because most of the time it will be a summons from court for my mother to appear in a case of a criminal defamation procedure against her.
“I saw my mother being subjected to it over and over again. And I know it’s the same case for many journalists around Europe,” he said.
Matthew Caruana Galizia, who now campaigns for media freedom as director of the Daphne Caruana Galizia Foundation, was speaking at an event held to discuss new proposals by the European Commission to increase protection for journalists and human rights defenders against abusive lawsuits.
They are known as “Slapps”: strategic lawsuits against public participation. They are used increasingly across the EU by the wealthy and powerful to try to shut down criticism and challenges.
‘Cross-border implications’
"Environmental activists with campaign groups like Greenpeace have been targeted for banners and placards for protests and demonstrations," said Charlie Holt, a campaigns manager with Greenpeace International, noting that corporations used international subsidiaries to overwhelm their targets by co-ordinating lawsuits in multiple jurisdictions at once.
Under the commission’s proposals “manifestly unfounded” court proceedings should be dismissed early; claimants should have to bear all costs if a case is dismissed as abusive; targets of Slapps should have the right to compensation; and claimants should be liable to penalties if they take abusive cases. EU member states should also not recognise a judgment from an abusive case taken in a non-EU country. Supporters have dubbed it “Daphne’s law”.
The proposals can only apply to civil cases “with cross-border implications”, due to the limits of the commission’s power over an area of law that falls under national jurisdiction.
Nevertheless, the commission has urged member states to tweak their national laws accordingly. Ireland, which has some of the harshest libel laws in Europe, has been repeatedly urged to do this by international bodies.
There are signs that Irish politicians are increasingly willing to take defamation cases against media organisations, with three such cases filed within a two-week period last month.
In a statement to The Irish Times, the commission noted Ireland’s “frequent defamation suits, high costs and high damages awarded by Irish courts, which were seen by stakeholders as an inducement to self-censorship and a constraint to media freedom”.
Now that the United Kingdom has left the EU, there are fears that Ireland will grow as the bloc’s hub for “libel tourism”, the placed used by people shopping for the most favourable jurisdiction, further adding urgency to the Government’s long-awaited reforms.