Journalists and precautionary warrants: changes to the law proposed by the Opposition

The Opposition is to bring immediately before parliament an amendment to the law, barring plaintiffs from using precautionary warrants in civil suits filed in terms of the Press Act.

The amendment, which was drafted on Friday by the Shadow Minister for Justice, Jason Azzopardi, addresses an anomaly in the law which allowed precautionary warrants to be used in this manner for the first time ever in Maltese legal history, last Wednesday.

The government will now face a choice between supporting one of its own ministers and his policy aide, and the Labour Party’s lawyer, and voting against the amendment, or supporting freedom of speech, the protection of journalists and commitment to a European society by voting in favour.

It’s going to be a tough call for them, because in the toss-up between personal benefit and the common good, they always go with personal benefit.

Yes, last Wednesday’s precautionary warrants were the first ever used for cases filed in terms of the Press Act. Saviour Balzan of Malta Today has been putting about the lie that his newspaper was served with a similar warrant for two million euros, but he’s wrong about the context. That precautionary warrant, served on Media Today (owner of Malta Today) by Azzopardi Fisheries, had nothing to do with a libel suit – there wasn’t one – but was for COMMERCIAL DAMAGES. Azzopardi Fisheries had warned Malta Today that if it continued to investigate and report on stories to do with its tuna fishing practices, it would sue NOT FOR LIBEL BUT FOR COMMERCIAL DAMAGES.

That too was abusive use of a precautionary warrant to curtail the work of journalists, but the point is that it had nothing to do with libel and it will still be possible even after the proposed amendment, because companies do not sue for commercial damages under the Press Act.

The Times of Malta, too, has reported that two of its senior staff were served with garnishee orders in a libel suit. But that has absolutely nothing to do with the cases under review. That was an executive garnishee order and not a precautionary warrant.

In other words, the court cases had been concluded up to appeals stage, there was a court order for the journalists to pay damages to the plaintiff, they failed to pay what was owed, and the plaintiff had a garnishee order issued against their assets. This is the normal and entirely legitimate use of a garnishee order against somebody who fails to pay you what he owes you.

In that particular case, the journalists at the Times of Malta were badly advised, having been told by their legal advisers that because they had taken their case one step further, to the Constitutional Court, they needn’t pay yet. But this was completely wrong because when cases move to the Constitutional Court, the original plaintiff is no longer part of the suit and the defendants in the original suit now become the plaintiffs versus MALTA (the state).

The case that was John Borg vs Jane Doe and Jim Zammit becomes, in the Constitutional Court, Jane Doe and Jim Zammit versus Malta, and before they do that, they have to pay their dues to John Borg. If the Constitutional Court rules that Jane Doe and Jim Zammit were wronged by the judgement in the original case, it will be THE STATE that has to pay compensation and John Borg has nothing to do with it.

Beyond that little detour, there is another point to be made. The Opposition leader said during the Sunday morning meeting in Sliema that the amendment will disallow “garnishee orders on journalists”. The news media all picked it up and reported it that way, but it was ‘big speech shorthand’.

In reality, it is only precautionary warrants that are going to be disallowed, because it stands to reason that when journalists owe plaintiffs money in damages as a result of a court judgement, and fail to pay, then the person to whom they factually owe that money should be able to serve them with an executive garnishee order. It is only the use of precautionary warrants that is wrong, abusive and dangerous because it has a freezing rather than chilling – and literally so – effect on the work of journalists. It is also a measure that is perfectly designed for retributive use.