Strategic Lawsuits Against Public Participation Order, 2024

L.N. 177 of 2024

EUROPEAN UNION ACT

(CAP. 460)

Strategic Lawsuits Against Public Participation Order, 2024

IN EXERCISE of the powers conferred by article 4(2) of the

European Union Act, the Prime Minister and the Minister responsible

for Justice, have made the following order:-

(1) The title of this order is the Strategic Lawsuits Citation, scope

and

Against Public Participation Order, 2024.

applicability.

(2) The scope of this order is to transpose Directive (EU) 2024/

1069 of the European Parliament and of the Council of 11 April 2024

on protecting persons who engage in public participation from

manifestly unfounded claims or abusive court proceedings ("Strategic

lawsuits against public participation").

(3) This order applies to matters of a civil or commercial

nature with cross-border implications brought in civil proceedings,

including procedures for interim and precautionary measures and

counter-claims, irrespective of the nature of the competent court or

tribunal.

(4) This order shall not extend to revenue, customs, or

administrative matters or the liability of the State for acts and

omissions in the exercise of State authority or to claims against

officials who act on behalf of the State or to liability for acts of public

authorities, including liability of publicly appointed office-holders.

(5) This order shall not apply to criminal matters or arbitration

and is without prejudice to the laws of criminal procedure.

In this order, unless the context otherwise requires

Interpretation.

"abusive court proceedings against public participation"

means court proceedings which are not brought to genuinely assert

or exercise a right, but have as their main purpose the prevention,

restriction or penalisation of public participation, frequently

exploiting an imbalance of power between the parties, and which

pursue unfounded claims, including but not limited to measures

such as

(a)

the disproportionate, excessive or unreasonable

nature of the claim or part thereof, including the excessive

dispute value;

(b) the existence of multiple proceedings initiated

by the plaintiff or associated parties in relation to similar

matters;

(c) intimidation, harassment or threats on the part

of the plaintiff or the plaintiff’s representatives, before or

during the proceedings, as well as similar conduct by the

plaintiff in similar or concurrent cases; and

(d) the use in bad faith of procedural tactics, such

as delaying proceedings, fraudulent or abusive forum

shopping or the discontinuation of cases at a later stage of

the proceedings in bad faith;

"Court" includes any Court and any tribunal established by

law seised of any matter to which this order applies;

"person" shall have the same meaning assigned to it in

article 4(e) of the Interpretation Act;

"public participation" means the making of any statement

or the carrying out of any activity by a natural or legal person in

the exercise of the right to freedom of expression and

information, freedom of the arts and sciences, or freedom of

assembly and association, and any preparatory, supporting, or

assisting action directly linked thereto, and which concerns a

matter of public interest;

"matter of public interest" means any matter which affects

the public to such an extent that the public may legitimately have

an interest in it, included but not limited to areas such as

(a) fundamental rights, public health, safety, the

environment or the climate;

(b) activities of a natural or legal person that is a

public figure in the public or private sector

Provided that an activity of a public figure shall

not be considered as a matter of public interest when the

sole purpose of a statement or activity concerning such a

person or entity is to satisfy the curiosity of a particular

audience regarding the details of a natural person’s private

lif e;

(c) matters under consideration by a legislative,

executive or judicial body, or any other official

proceedings;

(d) allegations of corruption, fraud, or of any other

offence of the same nature, whether criminal or otherwise;

(e) activities aimed at protecting common values,

such as respect for human dignity, freedom, democracy,

equality, the rule of law and respect for human rights, and

the protection of democratic processes against undue

interference particularly by fighting disinformation;

"third-country" means a State which is not a Member State

of the European Union.

(1) For the purposes of this order, the Court seised shall, Cross-border

after having due regard to the particular circumstances of the relevant implications.

case, consider a matter to have cross-border implications unless both

parties are domiciled in Malta and all other elements relevant to the

situation concerned are located only in Malta.

(2) Domicile shall be determined in accordance with the

relative provisions of Regulation (EU) No 1215/2012 of the European

Parliament and of the Council of 12 December 2012 on jurisdiction

and the recognition and enforcement of judgments in civil and

commercial matters.

(1) In cases where court proceedings to which this order Defendant’s

applies are brought against a person on account of his engagement in safeguards

remedies.

public participation, such person may apply to the court to provide for

(a)

security, as provided for in article 5;

(b) early dismissal of manifestly unfounded claims, as

provided for in article 6; and

(c) remedies against abusive court proceedings against

public participation, as provided for in article 7

Provided that the court may also grant such

safeguards and remedies ex officio.

(2) A claim filed in accordance with sub-article (1) shall

include a description of the elements on which it is based and the

relative supporting evidence.

(3) When an application in terms of sub-article (1) is made, the

Court may in accordance with article 960 of the Code of Organization

and Civil Procedure and if the defendant so approves, allow that

associations, organisations, trade unions and other entities which have a

legitimate interest in safeguarding or promoting the rights of persons

engaging in public participation intervene in the suit to support the

defendant or allow such entities to provide information in those

proceedings.

The Court may, after having due regard to the right of access

to justice, order the plaintiff to provide security for the estimated costs of

the proceedings or apply other specific safeguards, taking into account

all costs and, or penalties which may potentially be due to the defendant

in accordance with this order

Provided that after having due regard of the circumstances

of the case, the right to an effective remedy and the right to a fair trial,

an application in accordance with this article shall be treated in an

accelerated manner.

(1) The Court may at the preliminary hearing and after

hearing the parties and such evidence as it deems necessary, dismiss

the case if it is satisfied that the claim is manifestly unfounded

Provided that

(a) the burden of proving that the claim is well-founded

rests on the plaintiff who filed the case;

(b)

in such cases it shall rest upon the plaintiff to

substantiate the claim to the extent that it enables the court to

evaluate if the claim is not manifestly unfounded; and

(c) having due regard of the circumstances of the case,

the right to an effective remedy and the right to a fair trial, a

claim under this article shall be treated in an accelerated manner.

(2) The Court’s decision under sub-article (1) shall be subject

to appeal in accordance with the provisions regulating appeals in the

Code of Organization and Civil Procedure or in any other applicable

law.

(1) In cases where the Court declares the proceedings as

abusive against public participation, it shall proceed to condemn the

plaintiff to pay the defendant all the legal costs of the cause as taxable

in accordance with the Schedule A of the Code of Organization and

Civil Procedure or the costs provided for in any other applicable law

and if the costs as claimed by the defendant exceed the costs as

provided in the said schedule or other law the court may at its

discretion grant additional costs as it deems appropriate provided that

it does not consider the costs requested by the defendant to be

excessive.

(2) Apart from the costs provided for in sub-article (1) the

Court may also impose at its discretion and according to all the

circumstances of the case a dissuasive penalty on the plaintiff in an

amount which shall not exceed ten thousand euro (€10,000) which

shall be payable to the defendant as a civil debt.

(3) Claims under sub-articles (1) and (2) may be treated in an

accelerated manner where possible, taking into account all the

circumstances of the case, the right to an effective remedy and the

right to a fair trial.

(4) Without prejudice to the Court’s discretion under the

proviso to article 4(1), the withdrawal of the case or any amendments

to the initial claim by the plaintiff shall not affect the defendant’s

rights to apply to the Court for the award of costs and damages under

this order.

The court shall ensure that the recognition and enforcement Non-

of a third-country judgment in Court proceedings against public enforcement

manifestly

participation by a person domiciled in a Member State is refused, if unfounded

abusive third

those proceedings are considered to be manifestly unfounded or country

judgments.

abusive under this order.

In cases where abusive court proceedings against public Protection

participation have been brought by a plaintiff domiciled outside the against

country

European Union in a court of a third-country against a person proceedings.

domiciled in Malta, that person may claim from the Court

compensation for the damages and the costs incurred in connection

with the proceedings before the court of the third-country

Provided that if the case is still pending before a court of a

third-country, the Court shall stay proceedings until such court of the

third country delivers its final judgement.

This order shall be without prejudice to the application of Saving.

bilateral and multilateral conventions and agreements between a third-

country and Malta or between a third-country and the European Union

concluded before the 6th May 2024.

This order shall apply and prevail to the exclusion of any This order

prevails.

other law in matters falling within the scope of its application.

(1) The court shall ensure that a person who files an

application in accordance with article 4 shall have access to

information on available procedural safeguards, remedies and support

measures under this order and under any other applicable law.

(2) The Court shall ensure that final judgments delivered by

Maltese Courts on any provisions of this order shall be published

online.

(3)

The Court Services Agency shall keep data on

(a) the number of abusive court proceedings against

public participation initiated in the relevant year;

(b) the number of such Court proceedings, classified by

the type of defendant and plaintiff;

(c)

the type of claim submitted on the basis of this order.

(4) The data referred to in sub-article (3) shall be submitted to

the European Commission on an annual basis.

Legal aid as provided for in Title X A of Book Third of the

Code of Organization and Civil Procedure shall be granted in

proceedings to which this order applies.

€0.54