Bad news for journalists: Why ‘Daphne’s law’ might not be as strong after all

Draft anti-Slapp measures are expected to be finalised soon. But will ‘Daphne’s law’ be robust enough to protect journalists and rights watchdogs from oppressive lawsuits?

By Julia Kaiser

Julia is a reporter at The Parliament Magazine

16 Oct 2023

It has been six years: on 16 October 2017, a car bomb went off in Malta. The device, which had been planted under the driver’s seat, killed the then 53-year-old Daphne Caruana Galizia. Her death sent shockwaves around the world. 

The mother of three was an internationally renowned investigative journalist. Focusing on financial crimes, she made her name as a reporter on the Panama Papers – an exposé of the previously hidden world of tax havens. 

Yet, her legacy lives on. In April 2022, the European Commission proposed a law seeking to protect journalists and human rights defenders by shielding them from abusive court proceedings – so-called Slapps. Informally, it is known as ‘Daphne’s law’. The Daphne Caruana Galizia Foundation, an NGO created by her family, campaigned for such legislation.

The Commission’s proposal is currently being discussed in the trilogue by the European Parliament and the European Council. The latter seeks to weaken the law, making it “a useless instrument”, argues Corinne Vella, sister of the murdered journalist and head of media relations at the foundation. 

 

Ironically, the Council’s proposed draft of Daphne’s law would not have protected Daphne

But what exactly are Slapps? The acronym stands for “strategic lawsuits against public participation”. According to the Coalition Against Slapps in Europe (Case), a Slapp is “an abusive lawsuit filed by a private party with the purpose of silencing critical speech”. For example: when a business executive goes to court to intimidate a journalist or human rights defender with the goal of complicating their work. 

And they are on the rise. Research by Case – which is a group of non-governmental organisations from across Europe united in recognition of the threat Slapps pose to public watchdogs – indicates the number of Slapp cases across Europe has been increasing. While there were four cases counted in 2010, that number climbed to 146 in 2020 and 161 in 2022. 

From 2010 to 2022 most Slapp cases were recorded in Poland, Malta and France. Throughout 2022, most lawsuits were files by businesses and businesspeople (39.9 per cent), followed by state-owned entities (26.8 per cent) and politicians (25 per cent). 

At the time of her death, Caruana Galizia was facing 43 civil and five criminal libel suits. Her husband and three sons have assumed responsibility for the pending cases, including one involving Malta’s former prime minister Joseph Muscat and his wife, who are still suing the journalist six years after her murder. “They claim she defamed them when she reported that they are implicated in a company identified in the Panama Papers,” her sister says.

When initiating the proposal last year, the European Commission took a particularly tough stance on Slapps. Vella described the Commission’s step as “groundbreaking because nothing like that had been proposed before”. Also, The European Centre for Press and Media Freedom “welcomed it as it provided key remedies and safeguards needed in any effective anti-Slapp legislation”. 

Applause also came from the European Parliament: “I know that the Commission really went as far as it could. And I have nothing but praise for [current Commission vice-president, Věra] Jourová and her team. They are absolute champions in the ongoing struggle to strengthen media freedom across the EU,” says Maltese MEP David Casa from the European People’s Party and co-chair of the European Parliament’s Media Working Group.

Among other things, the Commission’s version of the directive foresees two major elements: one is introducing a mechanism of early dismissal of Slapps. This means that courts could drop cases once they have been identified as an abusive lawsuit. This mechanism is particularly important since “the whole point of a Slapp is not whether or not the journalists or human rights defenders are guilty”, as Vella explains to The Parliament, “but to put them under pressure, draining their time, energy and money, and to make an example of them to discourage others from taking the same line in their work”. 

Corinne Vella, sister of murdered journalist Daphne Caruana Galizia
Corinne Vella, sister of murdered journalist Daphne Caruana Galizia

The second element included in the proposal by the Commission covers cross-border cases – those affecting more than one Member State. A case would also be considered cross-border when the plaintiff and defendant live in the country where the court case is filed, but also concerns another Member State. This would affect, for instance, financial crimes involving money being moved across borders. 

However, the widely praised directive might not be as strong after all. The Council seeks to set the bar higher when it comes to early dismissal of cases, stating: “A manifestly unfounded claim may be understood as being a claim which is so obviously unfounded that there is no scope for any reasonable doubt. This needs to be assessed on a case-by-case basis in relation to each specific claim.”  

Vella underlines: “If the case goes ahead and in the end the defendant was found not guilty, they have wasted their time, their energy and their money on defending themselves, not on their stories or their activism or research. The early dismissal mechanism is really important and this is one of the things that must be protected throughout the trilogue negotiations.”

An EU source defends this amendment by stating that the aim is to guarantee the fundamental right to fair trial and access to justice: “Journalists and human rights defenders will still benefit from a strong procedural safeguard to protect themselves against manifestly unfounded court cases. The explanations merely give courts some indication in order to be able to identify manifestly unfounded claims on a case-by-case basis.”

Making it harder to dismiss Slapps at an early stage is not the only amendment the Council foresees. The Member States also aim to remove the broad definition of cross-border cases. Vella explains: “The European Commission’s draft directive would cover any court case against Daphne that involved cross-border money flows. But according to the Council's draft text, those court cases would not be considered cross-border.”

An EU source provides the following explanation: “It is an established practice in EU legislation related to judicial cooperation to leave it to the courts to decide whether a case has cross-border implications. The Council does not exclude cases where the plaintiff and the target live in the same jurisdiction, even though the subject has cross-border elements, but leaves it to the judge to assess those cross-border elements on a case-by-case basis.” 

We cannot accept to squander our chance at strengthening press freedom by passing a bad law and doing more harm than good

However, the Council’s position left organisations advocating for press freedom frustrated: “The General Approach draft is an extremely disappointing regress on the side of governments who made the proposed directive so weak that it will hardly protect journalists and activists,” says Jordan Higgins, press and policy officer at the European Centre for Press and Media Freedom.

Vella shares this opinion: “It is infuriating to have come this far, only to be let down by the governments themselves. Ironically, the Council’s proposed draft of ‘Daphne’s law’ would not have protected Daphne.”

Yet, the Council does not have the final say. Currently, the negotiations with European lawmakers are ongoing. One lawmaker seeking to impose a strong directive is Maltese MEP David Casa. “We cannot water down the anti-Slapp directive if we want it to do its job effectively. An effective directive closes the loopholes that enable abuse and that place journalists and activists at risk,” he tells The Parliament

“The threshold in the Council position renders the early dismissal mechanism functionally useless, which means that journalists are still exposed to exorbitant legal and court fees for frivolous cases instituted against them,” he says.

For Casa, Malta’s longest serving MEP and member of the Nationalist Party, having an effective early dismissal mechanism is non-negotiable. “Without it, no other measure will be effective,” Casa insists. 

He says the burden of proof has to be shifted to those bringing the claim: “If a case is assessed as abusive, then the legal fees must be borne by the claimant and penalties must be imposed. For third country judgments without these safeguards, courts in Europe should be able to refuse enforcement if they are deemed abusive.” 

Without all these elements working together, Casa says, legal systems will effectively be supporting those who seek to stifle public debate.

“We cannot accept to squander our chance at strengthening press freedom by passing a bad law and doing more harm than good”, Casa stresses. “And I am confident that the Parliament’s negotiating team will effectively convey the importance of ‘Daphne’s law’ being a strong directive to our colleagues in the Council.”

The final shape of ‘Daphne’s law’ might be formally confirmed with a plenary vote by the end of 2023, but certainly by the end of this legislature.

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