Interviews with leading anti-SLAPP lawyers: Michael Zammit Maempel

Michael Zammit Maempel

The art of SLAPP defence is a selective field. Most lawyers have only a vague idea of SLAPPs, if any, as the topic is still barely present in their studies and existing regular training. 

As part of the PATFox project, we have been organising training and networking meetings for lawyers to change this. And we have talked to experts who have already gained a lot of experience with SLAPPs. In this, the second of a series of interviews (see also our previous interview with Nicola Canestrini), we present their experiences and perspectives.

Michael Zammit Maempel, LL.D., LL.M. is a Maltese lawyer specializing in internet content law as well as media & intellectual property law and corporate & commercial law. Michael holds degrees from the University of Malta and Queen Mary, University of London, and is one of Malta’s most renowned attorneys for the defense against SLAPPs. 

Can you characterise the SLAPP cases you have handled in recent years - is there a ‘classic’ SLAPP case, or is it difficult to generalise? What makes these cases stand out?

When it comes to litigation, the majority of the cases I handle these days are on behalf of journalists who are fighting to receive information in terms of Malta’s Freedom of Information Act – because it has become common practice for public authorities to fight out most requests for information. The delay in fighting out the case usually means that the story loses its news value entirely by the time the final decision is pronounced, and an enormous amount of resources have been wasted in putting up the battle.

Threats of SLAPP, usually in the form of intimidating letters sent by law firms even though there is no legal basis for the threat, also remain a frequently-encountered feature that has an immediate chilling effect. Many of the journalists I see have the instinctive reaction of slowing down on stories and investigative reporting that would otherwise have been fully in the public interest.

Do you think there are good practical ways to deal with SLAPP cases quickly?

The best tool we’ve encountered remains that of deliberately creating ‘noise’ around any attempt to intimidate journalists through SLAPPs. Drawing conspicuous and loud attention to the fact that someone is being bullied (deliberately creating a ‘Streisand Effect’), usually has the effect of drawing negative public opinion to the aggressor – and this is something that typically most aggressors wish to avoid at all costs.

Once litigation is filed, however, this may not always be possible, and once things reach this point the only viable solution is to invoke defence pleas that push for early dismissal of the case. This will hopefully become easier once the provisions of the proposed Directive come into force.

What is the significance of SLAPP for your professional practice? Are such cases different from other cases?

SLAPP cases are different because they aren’t simply transactional in nature; they aren’t simply two parties trading off their rights against each other in the normal course of life or business. They are motivated primarily in aggression and intimidation, and they are therefore seeking a perversion of justice. This means that they cannot be treated and handled by applying the ordinary rules of the game, but they require strategic thinking, planning and allocating time and financial resources.

Are SLAPP cases more stressful than other cases?

They can certainly contain higher drama than ordinary cases! This is because the stakes are usually higher, and because the parties are usually in a ‘David and Goliath’ situation where one party has a bigger warchest than the other.

I say the stakes are higher because the defendant is usually in the unenviable situation of having to defend fundamental principles of free expression on behalf of a wider community of journalists – if you lose, the whole community loses with you. This can therefore make things a little stressful because the margin of error can never be too wide.

How do you perceive the professional discourse on SLAPP in the past 2-3 years? How is the topic addressed and discussed in the legal profession in your eyes, what (non-)understanding is developing for it in the judiciary?

Following the assassination of Daphne Caruana Galizia in 2017 and the national trauma this caused, a public inquiry that analysed the causes that led to this assassination was concluded in 2021. Although the Maltese Government has still not implemented the majority of the recommendations drawn up by the inquiry, its conclusions have nonetheless left their mark on the Maltese judiciary which is, even if not overtly, mindful of what those recommendations are and of their context in the greater picture of upholding human rights and preserving other democratic principles.

In the last few years, therefore, the public conversation in Malta and the attitude of the judiciary has therefore been influenced both by the assassination itself and by the conclusions of the inquiry. This is not to say, however, that all the lessons have been learnt and that the situation has been turned around; very far from it.

What is your outlook - what role will SLAPPs play in the next 2-3 years?

Just as SLAPPs have become more subtle and sophisticated in Malta in recent years, by moving out of the public spotlight and ‘flying under the radar’, I suspect the trend will be felt in other parts of Europe too.

The Directive, if and when implemented, will assist in libel and defamation cases, but the threats created by unscrupulous law firms acting for aggressors will likely increase as a result.