Government officials touted this announcement as the culmination of a transparent and inclusive public consultation towards unprecedented reforms to safeguard the media in Malta following the death of journalist Daphne Caruana Galizia.

Caruana Galizia was killed by a car bomb in Malta on October 16, 2017, and, to date, three men have been convicted, and three other suspects await trial, including the alleged mastermind.

Two years following her death and after pressure from the Caruana Galizia family, civil society and international media freedom organisations, the government commissioned a public inquiry to investigate the circumstances that led to her death.

In its 2021 report, the public inquiry found the state had to “shoulder responsibility” for Caruana Galizia’s death because it had created an “atmosphere of impunity”. It had also failed to take reasonable steps to protect her. The report went on to make critical recommendations for legislative reform within the establishment and within the police to fight corruption and improve the safety of journalists.

Two years after receiving the final report of the public inquiry into the assassination of Daphne Caruana Galizia, Malta has yet to address the systemic failures that led to the journalist’s death.

Malta’s government has still only fully implemented one of the 28 key recommendations, which it proceeded to mishandle.

The Caruana Galizia inquiry report recommended setting up a Committee of Media Experts that was meant to examine the state of journalism and the fundamental right of freedom of expression. The committee was to produce specific recommendations that parliament would consider in a brief timeframe.

Instead, the government set up a Committee of Media Experts to advise on legislation already drafted rather than to advise the government during the drafting process. And ever since the Committee was set up, the entire two-year consultative process has been characterised by opacity and controversy, leaving journalists no better protected than before.

As journalists and civil society await the publication of the white paper and the details included within, there is some concern that this major opportunity for meaningful reform which better protects journalists could be lost, and that one element of the legacy many hoped to secure after the tragic murder of Daphne Caruana Galizia could be undermined.

 

A fraught and opaque process

Work to reform the laws governing Maltese media began in January 2022 after the government rejected legislative proposals presented in parliament by the opposition that were based on the public inquiry’s recommendations.

Instead, the government announced that it had appointed an eight-person committee to assess local laws and advise on improving them. The committee was given three months to submit their comments and suggestions on the draft legislation already prepared by the government.

The committee was never consulted during the drafting of the bills. It was also instructed to keep their discussions confidential, which led to criticism of the journalists who formed part of the Committee representing Malta’s Press Association.

The Committee of Media Experts submitted its first recommendations and proposals in June 2022. But the report was not made public until late September when Justice Minister Jonathan Attard presented the government’s proposals at a press conference.

Legal experts immediately identified several deficiencies in the Maltese government’s legislative proposals.

For example, a proposed amendment that seeks to protect the heirs of a deceased author or editor in defamation cases still raises concerns about the ability of publishers to defend against such allegations should a plaintiff decide to pursue their case against a publisher.

In addition, the proposed amendments address Strategic Lawsuits Against Public Participation (SLAPP) by empowering Maltese courts to dismiss baseless cases. Damages in SLAPP suits from foreign courts can be capped locally, and local courts can disregard foreign judgments in such suits. However, the proposed legislation falls short of international recommendations, leaving journalists in Malta vulnerable to SLAPP threats.

 

About to miss an opportunity?

After unveiling the draft bills, over a hundred Maltese journalists, academics, and artists wrote to Prime Minister Robert Abela, urging him to hold a public consultation on the proposed legislation.

The prime minister initially resisted but eventually agreed to halt the legislative process to allow the media experts committee to consult the broader media sector.

The same committee, whose main recommendations had already been ignored and which the government blamed for the lack of consultation, was then tasked with consulting the public and returning with a revised set of recommendations.

The committee submitted its second report to the government last July. Malta’s Parliament had closed for the summer recess by then, allowing the government to keep the report under wraps until October 2 when it was tabled in the House of Representatives.

Proposals made by the committee include creating a system of transparent public funding for media houses, binding public authorities to provide information to journalists within a reasonable time, and constitutionally protecting journalists from revealing their sources.

These elements of the proposed reforms have been cautiously welcomed by media freedom groups, who stress that the devil will be in the detail of the proposed amendments, as well as the strictness of their implementation.

The committee also proposed amendments to the law protecting journalists from Strategic Lawsuits Against Public Participation, allowing them to be dismissed early on in the court proceedings and recommended the removal of terms such as journalist, author or editor and extending the protection from SLAPPs to other possible targets, including NGOs and activists.

It also advised the government to empower magistrates who rule against a SLAPP case to order the payment of damages to the person or entity targeted by the SLAPP suit.

In its report, committee members noted that the government had again ignored its central original proposal, namely imposing an explicit obligation upon authorities to provide access to information within a reasonable time via Freedom of Information (FOI) requests..

There were also several recommendations, including those by international press freedom organisations, that the Media Committee should have considered in this second round of recommendations.

The committee did not introduce specific criteria for identifying a SLAPP suit and maintained the process of acknowledging foreign judgments that comply with the third country’s law. Experts, therefore, believe that in their current form, the suggested anti-SLAPP provisions will do little to deter plaintiffs from filing SLAPP suits.

When the report was tabled in parliament on October 2, Prime Minister Abela also announced that he would publish a white paper with the proposed laws for the media in Malta but gave no indication when this would be.

Given how fraught and protracted the entire consultation process has been, the white paper feedback may be the last chance to push for more ambitious legislation to create an enabling environment for public participation in Malta or risk being stuck with sub-optimal laws that will do little to change the status quo.

As the wait for the white paper continues, determination remains firm amongst media, journalists and international organisations to push for the best possible media laws for Malta, and the improvement in press freedom that such reforms would bring.

This article was commissioned by IPI as part of the Media Freedom Rapid Response (MFRR), a Europe-wide mechanism which tracks, monitors and responds to violations of press and media freedom in EU Member States and candidate countries. The project is co-funded by the European Commission.

The 2018 assassination of Ján Kuciak and his fiancée Martina Kušnírová in Slovakia occurred just months after that of Maltese journalist Daphne Caruana Galizia, in October 2017, raising urgent questions about the state of press freedom in both countries. However, the outcomes could not be more different.

 

While Kuciak’s death brought investigative journalism to the forefront of public debate and led to legislation to better protect journalists, the same cannot be said for Malta, where justice for Caruana Galizia remains elusive as the government resists much-needed reforms.

 

In Malta, a lack of political will and differing interpretations of what constitutes public engagement has resulted in a public consultation process on proposed media legislation that produced no significant outcome. It also means that several laws affecting press freedom in Malta are flawed in their current form.

 

On February 15, the government-appointed Committee of Media Experts held a half-day conference as part of a public consultation on the proposed legislation to protect journalism in Malta. The Minister of Justice, Jonathan Attard, responsible for the proposed legislation, had been invited to speak at the conference. However, he did not attend or send a representative in his stead.

 

The chairman of the committee, retired judge Michael Mallia, who also chaired the Daphne Caruana Galizia public inquiry, told the audience. “Where it [the exercise] goes from here, I cannot say,” but not before noting that the government appeared to be ignoring the committee’s most significant recommendations.

 

Public consultation as a box-ticking exercise

This lack of progress on the government’s proposed changes to Malta’s media laws is unsurprising, given how fraught the entire process has been.

 

In July 2021, an independent public inquiry into the circumstances surrounding Caruana Galizia’s murder concluded that the state “should bear responsibility for the murder”. Although Prime Minister Robert Abela called an extraordinary parliamentary session to discuss the inquiry’s report, he never committed to a timetable for implementing the inquiry’s recommendations.

 

The board’s recommendations for journalism include various laws and constitutional changes, including a law to ensure journalism is self-regulated and a constitutional amendment recognising an individual’s right to receive information from the state. The board also recommended a revision of Malta’s Freedom of Information Act (FOI) and a revision of the constitutional provisions of Malta’s Broadcasting Authority.

 

To date, Malta’s government has only fully implemented one of the 28 key recommendations made by the board of inquiry.

 

When the opposition later tabled several bills in parliament based on the public inquiry’s recommendations, the government shot them down.

 

Instead, it hastily set up a Committee of Media Experts who were given three months to submit their comments and suggestions on the draft laws already prepared by the government but who were never consulted during the drafting process. Furthermore, the government demanded that the committee keep its discussions confidential, excluding many media and journalism stakeholders.

 

The Committee of Media Experts then submitted its recommendations and proposals in June. But nothing was heard until late September when Justice Minister Jonathan Attard made the government’s proposals public at a press conference.

 

As a result, the committee’s main recommendations were ignored, and the draft law was submitted to parliament in early October. These included proposed amendments to the law on the safety of journalists and on Strategic Lawsuits Against Public Participation (SLAPPs), which, however, did not meet international standards.

 

More than a hundred Maltese journalists, academics and artists then wrote to Prime Minister Robert Abela, urging him to hold a public consultation on the proposed legislation.

 

The prime minister initially resisted, but after two members of the Institute of Maltese Journalists (IĠM) threatened to withdraw from the committee of experts, he finally halted the parliamentary process and promised to open the legislation to public scrutiny.

 

In practice, all the government did was delegate the public consultation process to the Media Experts Committee. The same committee, whose main recommendations had already been ignored and which the government blamed for the lack of consultation, was tasked with consulting the public and returning with a revised set of recommendations.

 

Differing views on what constitutes public consultation

When the media community wrote to the prime minister asking him to open the proposed legislation to wider scrutiny, he insisted that the committee could have consulted with whomever it wished – although the published correspondence by the committee shows this was not the case.

 

Similarly, in an official response to an alert from the Council of Europe’s Platform for the Safety of Journalists, Minister of Justice Jonathan Attard repeatedly insisted that the government had held broad public consultations with various stakeholders on its proposed media bills.

 

His response also stated that the bills tabled in the House of Representatives on January 27, 2022 were available to the public and “open for scrutiny and review by the public at large”.

 

The minister was referring to a document containing an early draft of the legislative proposals for the media that the prime minister presented in parliament following a parliamentary debate in which he claimed the opposition had been consulted about the draft media proposals.

 

Legal experts pointed out that tabling a document in the House of Representatives because it was mentioned in a speech in Parliament does not amount to public consultation.

 

Legislation without consultation

These loose notions of what constitutes public consultation by Malta’s top officials point to a wider problem in the government’s approach when drafting legislation.

 

The European Commission’s 2022 Rule of Law Report noted with concern that Malta has no rules or guidelines on public participation in the drafting of legislation. There are, however, various channels for consulting the public, but these are subject to the discretion of the Ministry preparing the initiative. Nor is the government bound or required to publish the feedback it receives.

 

This discretion may explain why ministers in Malta have such a poor grasp of what a full public consultation should entail and why the government often chooses not to consult at all. This has affected several laws related to media freedom in Malta.

 

For example, the amendment of Malta’s Protection of Whistleblowers Act was passed without any public consultation and is considered inadequate. The law reform was passed just in time to meet the deadline for implementing the EU directive on improving the protection of whistleblowers.

 

According to Parliamentary Assembly of the Council of Europe (PACE) rapporteur Pieter Omtzigt, the reform does not provide any real protection for whistleblowers and “ignores the Directive’s requirements for transparency, including regular monitoring of the impact of the legislation”, adding that the law was “rushed through without any meaningful consultation”.

 

A recent report by the civil society group Reppublika also outlined how the amended law failed to address a fundamental flaw, namely the extent of government influence over whether a potential witness is granted whistleblower status.

 

In another instance, the government issued a legal notice empowering the director general of the court – a state official who reports directly to the Ministry of Justice – to decide which court judgments can be removed from the online database of judgements available to the public, without any criteria or controls to ensure that the system is not abused. Media organisations and legal experts strongly opposed the move.

 

The same can be said of the legislative reform of Malta’s Freedom of Information (FOI) Act. Not only has there been no public consultation, but the government is refusing to publish the report it commissioned to review the law.

 

The report was commissioned following pressure by the Council of Europe because the current law cannot guarantee its stated aim. But despite its completion two years ago with an accompanying bill to be presented to Parliament, the report is being kept under wraps. A Freedom of Information request by The Shift to see the report was also refused.

 

Malta and Slovakia – same problem, different results

In Slovakia, the assassinations of Ján Kuciak and Martina Kušnírová led to far-reaching changes, including progress on press freedom. In Malta, the fifth anniversary of Caruana Galizia’s killing was marked by a lack of significant reform.

 

While in Malta, the independent media community struggles to make headway with the government, in Slovakia, legislative reforms adopted by the current government were approved after regular consultations with its journalistic stakeholders. These included important bills strengthening the legal protection of the confidentiality of journalistic sources and increasing the transparency of media ownership and funding.

 

In Malta, the government refuses to publish its report on amendments to its FOI laws. In Slovakia, freedom of information and government transparency rules have improved significantly, and the country now has one of the best FOI laws in Europe.

 

This is not to say that there are no challenges to media freedom in Slovakia, and the fight against impunity is not over.  But if the quality of legislation can also be judged by the level of consultation that precedes it, Slovakia and Malta have respectively illustrated what the resulting legislation looks like with and without broad consultation.

This article was commissioned is part of the Media Freedom Rapid Response (MFRR), a Europe-wide mechanism which tracks, monitors and responds to violations of press and media freedom in EU Member States and candidate countries. The project is co-funded by the European Commission.

Two days before the fifth anniversary of the assassination of Maltese journalist Daphne Caruana Galizia, two brothers were each sentenced to 40 years in prison for their role in the journalist’s assassination.

Despite this significant turn of events, the fight for full justice for Daphne Caruana Galizia remains characterised by lengthy court delays, police inaction and a general lack of political will by the Maltese authorities to pass reforms that would help ensure journalists in Malta, an EU member state, can do their work safely.

It has been five years since Caruana Galizia was killed in a car bomb a few metres outside her home in Bidnija. Nevertheless, even as thousands gathered in Valletta this past October 16 to commemorate the journalist, the fight for justice, led by her family and a coalition of Maltese and international civil society groups and independent journalists, remains as gruelling as the day it began.

Three criminal convictions

Until recently, there had only been one criminal conviction in the murder case, that of Vincent Muscat, who was sentenced to 15 years for planting and detonating the bomb. Muscat negotiated a plea bargain that saw him become a state witness.

The two other men charged with executing the assassination, brothers George and Alfred Degiorgio, were still in pre-trial detention five years after their arrest in a dramatic raid at the port of Valletta in December 2017.

However, on October 14, at the start of the trial by jury that was being monitored by several international press freedom organisations, including the International Press Institute (IPI), the brothers changed their plea from “not guilty” to “guilty” mid-way through the first hearing. Malta’s Criminal Court sentenced each brother to 40 years in prison plus fines and the return of criminal proceeds related to the crime.

The brothers changed their plea mid-way through the court proceedings after having witnessed the assistant attorney general detail to the jurors how the police had traced burner phones that had been used in the murder to phones belonging to the Degiorgio brothers. Journalists and observers who had gone to court that day expecting to cover the trial over several weeks were presented with a dramatic turn of events that included unexplained delays and outbursts by the accused.

After the sentencing, Alfred Degiorgio was overheard telling a prison guard that he wanted to approach Caruana Galizia’s family, saying, “I want to give them the full truth from beginning to end if you want to know it”, but as the brothers tried to approach the family, they were stopped when the family refused to speak to them.

However, barely two weeks after the brothers’ sentencing, lawyers for the brothers then filed an appeal asking for their trial by jury to be held again, as well as for a reduction in their sentence.

Until the trial by jury, much of the delay in court proceedings was caused by the Degiorgio brothers filing over 100 preliminary pleas and several bids for an official pardon for their crimes in exchange for information, including about several Maltese politicians.

However, the conviction of the three assassins is only the beginning. Many local and international organisations, as well as Caruana Galizia’s family, have underscored that impunity for her assassination will only truly end when all those responsible for the journalist’s death, including other potential intermediaries and mastermind(s), are identified, and prosecuted to the full extent of the law.

On August 18, 2021, Yorgen Fenech, a Maltese casino boss with close ties to senior government officials, was indicted on charges of complicity in committing murder. The indictment claims that Fenech ordered and paid for the killing. He is currently in pre-trial detention.

The state is responsible – conclusions of a landmark public inquiry

Aside from the criminal proceedings, an independent public inquiry into the circumstances surrounding Caruana Galizia’s killing concluded in July 2021 that the State “should bear the responsibility for the assassination”.

The government of Malta had initially resisted the idea of a public inquiry by claiming that there was no need for one since criminal proceedings were already underway.

It took a two-year campaign by civil society, NGOs, European institutions, and Caruana Galizia’s family for the Maltese authorities to finally announce, in December 2019, the panel of three judges that would lead the inquiry and examine the background that led to her assassination.

The three judges gathered evidence over a period of 18 months. They heard witness statements from investigators, politicians, persons from public administration and State entities, journalists, and Caruana Galizia’s extended family.

The report was published in July 2021 and found that the State “should bear the responsibility for the assassination” and added that her isolation and dehumanisation, coupled with the inaction of law enforcement and other authorities, helped create an atmosphere of impunity.

In other words, those who wanted to harm Caruana Galizia felt they could do so with the assurance that they would be protected.

A lack of transparency and ambition

The public inquiry report also made a series of wide-ranging recommendations for reform within the government and the police to improve the safety of journalists in Malta. Nevertheless, these recommendations have run into a lack of political will.

During an extraordinary parliamentary session to discuss the public inquiry’s conclusions, Prime Minister Robert Abela never committed to a plan or a timeline to implement the inquiry’s recommendations. Nor did he take up the technical assistance offered by several press freedom organisations to help the government with the implementation process.

A detailed analysis by The Shift news portal found that Malta’s government has only fully implemented one of the 28 key recommendations.

In the meantime, the government also shot down legislative proposals presented in parliament by the opposition, which were based on the public inquiry’s recommendations. It hastily set up a committee of media experts, which was given three months to submit their comments and suggestions on draft legislation prepared by the government.

But the limitations of the Maltese government’s legislative proposals had already been identified as far back as January, and the committee of media experts was never consulted during the drafting of the bills.

Even more problematic was that the government demanded that the committee keep their discussions confidential, excluding many media and journalism stakeholders.

In the end, the most significant recommendations by the committee were ignored. Draft legislation was tabled in parliament in early October, even though some of the proposed legal amendments relating to the safety of journalists and Strategic Lawsuits Against Public Participation (SLAPPs) failed to meet international standards.

More than a hundred Maltese journalists, academics, and artists wrote to Prime Minister Robert Abela, urging him to hold a public consultation exercise on the proposed legislation.

The prime minister defended the proposed legislation and insisted that the committee could have consulted with whomever it wished – despite correspondence published showing this was not the case. He added that the parliamentary debate would be another opportunity for the legislation to be amended if there is the need to do so.

Only after two Institute of Maltese journalists (IĠM) members threatened to withdraw from the committee of experts did the prime minister finally halt the parliamentary process and promise to open the legislation to public scrutiny.

Increasingly restrictive access to information

While all of this is taking place, and although Malta’s prime minister has publicly stated that he supports journalism, the overall attitude of most government officials towards independent journalists is still visibly hostile.

Independent journalists, activists, and government critics are still singled out and targeted by government propagandists on both the governing party’s media outlets and social media, while access to information in the public interest is getting harder.

The most representative example of this antagonistic attitude towards journalists is the 40 Freedom of Information (FOI) lawsuits brought against The Shift by several government entities.

In July 2021, Malta’s Data Protection Commissioner ruled in favour of 40 FOI requests filed by independent media outlet The Shift to investigate the government’s spending on advertising. Each government entity lodged an identical appeal against the Data Protection Commissioner’s decisions. In six of those cases, those entities that lost the request are now pursuing a second round of appeals against these decisions.

The scope of these appeals seems intended not to win but to exhaust The Shift’s time and resources while also sending a clear signal to other newsrooms that the Maltese government will challenge their attempts to obtain information under the country’s FOI law.

Even though Malta’s prime minister had stated that lessons needed to be drawn from the public inquiry report, the seeming lack of political will to initiate effective and broad legislative reforms casts doubt on whether Malta’s political class has learnt any lessons from Caruana Galizia’s assassination or whether it simply plans to give the impression that it intends to protect those who work towards continuing her legacy while surreptitiously making things harder.

This article was coordinated by the Media Freedom Rapid Response (MFRR), a Europe-wide mechanism which tracks, monitors and responds to violations of press and media freedom in EU Member States and candidate countries.