STRATEGIC LAWSUITS AGAINST PUBLIC PARTICIPATION ORDER

PARTICIPATION

SUBSIDIARY LEGISLATION 460.40

STRATEGIC LAWSUITS AGAINST PUBLIC

PARTICIPATION ORDER

31st July, 2024

LEGAL NOTICE 177 of 2024.

(1)

The title of this order is the Strategic Lawsuits

Against Public Participation Order.

(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

"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;

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(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 life;

(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;

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(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, after having due regard to the particular circumstances of the

relevant 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 applies are brought against a person on account of his

engagement in 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.

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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

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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 of a third-country judgment in Court proceedings against

public participation by a person domiciled in a Member State is

refused, if those proceedings are considered to be manifestly

unfounded or abusive under this order.

In cases where abusive court proceedings against public

participation have been brought by a plaintiff domiciled outside the

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

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

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

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

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(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

Legal aid in civil

cross-border

the Code of Organization and Civil Procedure shall be granted in

proceedings.

proceedings to which this order applies.