The Media and Defamation Act of 2017 : pitfalls avoided and issues that persist from Bill 192 to Bill 17

Abstract

A 44-year old Act regulating the Press in Malta, virtually unchanged for the past 22 years, is finally being overhauled. Two Bills were tabled in Parliament in the past 12 months. The first Bill, that fell following the dissolution of Parliament, had numerous issues. Namely; retaining pending criminal proceedings under a law that no longer existed; introducing the compulsory registration of websites, on pain of a €1,000 fine and the loss of protection of journalistic sources upon failure to register and doubling the maximum damages that could be awarded. The second Bill presented a marked improvement on the previous Bill as it eliminated these issues but other issues remain. This paper will examine the pitfalls that were avoided in the previous Bill and the issues that persist with the current Bill. Notably; the non-inclusion of the warrant of prohibitory injunction in the provision precluding the use precautionary warrants against journalists and media houses; the possibility of giving the Courts discretion, in some cases, to reverse the burden of proof in cases where the defendant is applying the defence of truth and the prospect of cross-border defamation lawsuits. The latter is arguably the largest threat facing the Maltese media landscape. While in rejecting the Opposition anti-SLAPP amendments, the Government may be on legally sound footing, other avenues to protect freedom of expression in the country need to be pursued. As a Member State whose media have already been silenced by a powerful corporate player taking advantage of EU regulations, Malta should be spearheading the drive for EU legislation to combat cross-border libel tourism and SLAPP. Such a threat is aimed at the very existence of media pluralism and independent journalism in the country.