After journalist’s murder, efforts to combat SLAPP in Europe

A woman holds a picture of slain investigative journalist Daphne Caruana Galizia in Malta on the anniversary of the journalist's killing. AP Photo/John Borg

Daphne Caruana Galizia, an investigative journalist in Malta, was on her way to the bank when she was killed by a car bomb outside her house in October 2017. For months her assets had been frozen by a precautionary warrant issued in conjunction with four libel suits brought by Malta’s economy minister and his aide, and she was trying to get her account unblocked. The cases were among 42 civil libel suits open against her at the time of her death, most of them brought by Maltese politicians and their business associates. The people who ordered her assassination, which is linked to her excoriating reporting on corruption and organized crime in Malta, have still not been identified. Following Caruana Galizia’s murder, the suits all passed on to her family.

Daphne’s husband, Peter Caruana Galizia, is a lawyer. Since his wife’s death, he has appeared in court twice a week to fight the cases. So far, 13 have either been withdrawn by the claimant or thrown out because they failed to appear in court; the Caruana Galizia family expects the same to happen to the remainder. Daphne Caruana Galizia was used to being sued in defamation cases, many of which ultimately fizzled out.

“It’s just a form of harassment to eat up your time, eat up your money,” Daphne’s son, Matthew, who is also a journalist, says. “It costs very little to file a libel suit in Malta… there’s almost no risk to the plaintiff. And the defendant has to pay to respond, otherwise they lose by default.”

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Journalists in other European countries say they’ve experienced similar harassment through what are called SLAPPs—Strategic Lawsuits Against Public Participation. The purpose of a SLAPP is to intimidate a journalist or news outlet into removing critical coverage or into self-censoring reports by repeatedly taking them to court in order to exhaust their time and resources. Matthew Caruana Galizia says there was a spike in SLAPPs brought against his mother in the year leading up to her murder.

“The last year of her life was basically horrible,” he says. “She was in court almost every single day.”

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Earlier this year, the Croatian Journalists’ Association (HND) led a march through Zagreb to protest the 1,100 libel cases open against journalists and news outlets at the time, brought on vague grounds including “mental anguish” or “tarnished reputation.” The HND says they are part of an attempt to suppress free speech.

Claudio Cordova, who edits the Italian news site Il Dispaccio, says he spends an average of three months out of every twelve defending against libel suits. He has never lost a case, but it doesn’t exactly feel like he’s winning, either. “You’re not convicted, but you don’t have any way to recoup your losses, and no one will ever give you back the time you lost attending the hearings,” he tells CJR.

Anti-SLAPP legislation exists in much of the world, including in 28 US states and parts of Canada and Australia. But in Europe judges are often unfamiliar with the phenomenon of SLAPPs, and lack understanding that libel suits are being used by plaintiffs in this way. The EU currently has no anti-SLAPP laws.

We don’t want to ban politicians from filing lawsuits, but we need to find ways to discourage politicians and powerful corporations from filing vexatious lawsuits against journalists and the media.

Now, campaigners are working to change that. After Daphne’s murder, the Maltese European Parliamentary Member David Casa led a call for the introduction of an anti-SLAPP directive in the EU. A coalition of NGOs, including the European Centre for Press and Media Freedom (ECPMF), the Committee to Protect Journalists, PEN International, Article 19, and Reporters Without Borders have begun conducting research into how such a directive might work.

Their research is still in the early stages, but proposed measures include shifting the burden of proof from the defendant onto the claimant in libel cases involving freedom of expression, and speeding up procedures to enable judges to dismiss meritless cases prima facie. Their plan is to provide the European Commission with preliminary research that will enable the Commission to develop its own anti-SLAPP legislation, which will most likely draw on the Fundamental Charter of Human Rights as its legal basis.

“We don’t want to ban politicians from filing lawsuits, but we need to find ways to discourage politicians and powerful corporations from filing vexatious lawsuits against journalists and the media,” Flutura Kusari, a legal advisor with ECPMF, says. “We also want to make judges across the European Union and beyond aware of the basic phenomenon of SLAPPs.”

Before an EU anti-SLAPP directive is drafted, however, there need to be changes to existing EU laws, says Dr. Justin Borg-Barthet, a senior lecturer at the University of Aberdeen, whom the coalition has commissioned to conduct research into EU libel law reform. In particular, Borg-Barthet advocates for reforming the Brussels I Regulation and the Rome II Regulation, which in their current forms allow plaintiffs to bring defamation suits in multiple jurisdictions of their choice (rather than being restricted to the state in which the dispute arose), and make it unclear which laws can be applied in a given suit, raising costs and increasing uncertainty for defendant journalists.

Before her death, Daphne Caruana Galizia was repeatedly threatened with costly libel suits abroad, including a lawsuit filed in the US courts by the Malta-based Pilatus Bank, which she had accused of money laundering. (The bank was shut down in November 2018 after its owner was charged in the US with money laundering and fraud.) In the days after Caruana Galizia’s murder, members of Borg-Barthet’s network noticed that Maltese publications including Malta Today, the Times of Malta, and The Independent had begun quietly deleting their own stories about Pilatus Bank.

When confronted, the publications’ editors acknowledged the deletions, saying that they had also been threatened with costly libel suits. The political blogger Manuel Delia wrote a post denouncing Pilatus’s tactics. “In every case they said we’re deleting these stories because it’s too expensive to litigate—so they stood by these stories,”  Borg-Barthet says. “It was very much 1984: ‘The past was erased, the erasure was forgotten, the lie became the truth.’”

“One small victory is we’re now hopeful that the erasure won’t be forgotten.”

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Elaine Allaby is a journalist who writes about migration, human rights, foreign affairs, and public and private sector abuses of power.