Justice Francesca Giacomini of the Court of Rome ruled on December 7, 2024 that the publication of truth can never be prosecuted as defamation and awarded cost against the company.
An Italian court ruled has against ENI in Italy, in a defamation suit against investigative journalist Mr Claudio Gatti and media company Società Editoriale Il Fatto SpA over Malabu oil scandal.
Justice Francesca Giacomini of the Court of Rome ruled on December 7, 2024 that the publication of truth can never be prosecuted as defamation and awarded cost against the company.
The Plaintiff in the civil matter of 2019 registered with number 67819 was ENI SpA, through its Attorneys Sara Biglieri of the Milan Bar Association, Luca De Benedetto of the Milan Bar Association and Roberto Fabio Lipari of the Rome Bar Association, had accused an investigative journalist, Mr Claudio Gatti and a media company of defamation in a book titled ‘ENIGATE’, which reported the Malabu scandal.
The Defendants are Mr. Claudio Gatti, a US-based Italian investigative journalist born in Rome on October 24, 1955 and Società Editoriale Il Fatto SpA.
They were defended by lawyers Caterina Malavenda of the Lodi court and Valentino Sirianni of the Rome court.
According to the court document obtained by SaharaReporters, ENI sought compensation for “damages for defamation”.
Malabu Oil & Gas Ltd was awarded an oil prospecting license in 1998 by Sani Abacha.
The original license of Malabu Oil and Gas was revoked in 2001 by President Olusegun Obasanjo. This move was seemingly unrelated to Dan Etete's interests, despite his significant connections to the company. As the former Minister of Petroleum under Sani Abacha, Etete had awarded the lucrative OPL 245 oil block license to Malabu in 1998, a company in which he himself had a stake.
Abacha’s son, Mohammed is claiming ownership of Malabu Oil and Gas.
Following a lengthy legal battle after the revocation, an out-of-court settlement was reached in 2006, restoring the block to Malabu, which was implemented by then President Goodluck Jonathan in 2011.
Shell and ENI acquired full rights to OPL 245 for $1.3 billion in a government-brokered deal. However, foreign watchdogs alleged fraud in the 2011 settlement, leading to criminal and civil cases in Italy and the UK. Despite these efforts, all defendants, including the oil companies, were ultimately found "not guilty" in court.
However, the then-Muhammadu Buhari administration declined to upgrade the prospecting license (OPL) to a full oil mining lease (OML) for the Etan and Zabazaba fields being developed by ENI.
With a duly notified writ of summons, ENI SpA urged the court to ascertain and declare that Mr. Claudio Gatti and the publishing company Il Fatto SpA are guilty of defamation “through the press, to the detriment of ENI with reference to the book for which the parties are suing and for the reasons set out in the narrative”.
ENI also asked the court to ascertain and declare liabilities and condemn, also jointly and severally, Mr. Claudio Gatti and the publishing company Il Fatto SpA to compensate it for damages for losses suffered by it (Eni SpA).
It quantified that it should be paid in total €5,000,000.00 (five million Euros), “or the greater or lesser amount withholding tax, even on an equitable basis, in addition to interest and revaluation monetary amount due to the balance”.
It also urged the court to ascertain and declare Mr Clauio Gatti liable and condemn him to pay a further sum as pecuniary compensation.
ENI also sought the immediate withdrawal from the book titled ‘ENIGATE’ from circulation “and to inhibit the publication and distribution of further copies of the same book”.
The plaintiff company complained that the book ENIGATE’s narration of the story of the purchase of the exploration rights of Block 245 is ‘incorrect, incomplete and misleading,’ providing the reader with a “false representation of reality” because of the “prejudice that fuels the author of the book” and his “failure understanding of significant technical and historical aspects of the operation”.
The plaintiff claimed that Mr Gatti's book suggests that ENI would have paid, availing itself of mediation of Mr. Emeka Obi and through the Malabu company, a “maxi-bribe” to Nigerian officials (“corrupt bigwigs of the Nigerian political class”) in order to obtain exploration rights relating to Block 245.
It said the book falsely states that a portion of the aforementioned bribe was “demoted” to “top management of ENI”.
It also claimed that the book suggests that the operation to purchase the OPL 245 rights was concluded with very serious prejudice to the Government of Nigeria and local population, who would not have received any benefit from the same.
The Plaintiff recalled some passages of the book and in particular pages 17, 70-71 and 249, which reads, “ENI and Shell have constructed a perfect scheme of what in English is called deniability, that is, they found a formula that would have allowed them to deny that the license was paid to Malabu, the company of the former Minister of Oil, Dan Etete.”
Finally, ENI contested that Mr Gatti's book "through a series of falsehoods, omissions and insinuations, gives the Nigerian affair a very marked imprint of illegality" and in several passages represented the operation of purchase of OPL 245 as a “theft of well over a billion dollars to the coffers of the Nigerian state", with the consequence that the Nigerian people would not have gained any real benefits.
ENI descried the claims as totally false.
But the Defendants argued that ENIGATE book is not intended to simply reconstruct the story of the purchase by ENI SpA of the rights to the OPL 245 block, but “derives from the examination of the judicial documents and other sources consulted by the author in relation, among other things”.
Both defendants also argued that there was no evidence of any damage immediately.
The court, however, found that the application lacked merit for the following reasons.
It said, “As a preliminary point, it should be noted that, although the action is aimed at contesting not the content of a newspaper article, but that of a book, which formally it can be defined as an artistic-literary work, however, referring to its content and, therefore, to the substantial data, the same way it can be defined as an investigative book and, therefore, should be assimilated to the works of a journalistic and essayistic nature, for its informative content, combined with that of reporting and awareness.
“The evaluation of the defamatory scope will therefore have to be measured according to the criteria of jurisprudential derivation, applicable to investigative journalism.”
In the light of these principles, the court considered that the book as a certain expression of the right of judicial investigation and that, therefore, all the conditions apply elements to exclude the defamatory nature of the book.
It also noted that from an examination of the case documents, it was clear that “there was a broad coincidence between the conclusions reached by the author of the book regarding the activities carried out by today's actor (Plaintiff) in this context, and the charges that the Public Prosecutor's Office The Republic of Milan will subsequently formulate against ENI and its summits for the Nigeria affair”.
“Finally, there is restraint in the language, inspired by a formal correctness of the exposition, the ethical duties of loyalty and good faith appear to be respected and, therefore, the critical reconstruction of the facts constitutes a legitimate expression of the right to free expression of thought, enshrined in art. 21 of the Constitution,” it said.
According to the court, the questions raised by the plaintiff must therefore be rejected.
“Any assessment relating to the existence of the damage is absorbed, which moreover, it does not appear to be sufficiently proven by the plaintiff,” it added.
“The defeat is followed by the condemnation of the plaintiff to pay the legal costs in favour of the defendants, liquidated as per the order, taking into account the value of the question.
“The Court in a single-judge composition, definitively ruling on the questions asked, thus provides: rejects the proposed questions; condemns the actor (Plaintiff) to pay the costs of the litigation in favour of the defendants, which settles a total of €11,203.00 for compensation, for each of the parties constituted, in addition to a flat-rate reimbursement of general expenses at 15%, VAT and CPA as by law.
U.S. Congresswomen’s Position On Malabu Scandal
In May 2024, two ranking U.S. congresswomen sent a letter to the Department of Justice (DOJ), urging the DOJ to reopen an investigation into two oil companies, Shell and Eni, for their principal roles in a bribery scheme that violated America’s Foreign Corrupt Practices Act.
According to them, it involved the millions of dollars in bribes paid to corrupt Nigerian officials.
The Act prohibits citizens and entities from bribing foreign government officials to benefit their business interests.
The U.S. Committee on Financial Services (Democrats) disclosed that Congresswoman Maxine Waters (D-CA), the top Democrat on the House Financial Services Committee and Congresswoman Joyce Beatty (D-OH), the Ranking Member of the Subcommittee on National Security, Illicit Finance, and International Financial Institutions called for the reopening of an investigation into foreign bribery case involving corporate bribes to Nigerian officials.
Experts allege that as a result of the millions of dollars in bribes paid to corrupt Nigerian officials, the country lost $6 billion in estimated future revenue—double the size of Nigeria’s annual health and education budget.
In the letter, Waters and Beatty highlight the ongoing harm that the bribery had posed to the Nigerian people and its economy, while the companies involved continue to profit.
Waters and Beatty raised the alarm on the need for the DOJ to step in immediately to further demonstrate its commitment to combatting corruption and corporate crime across the globe.
The lawmakers in a letter addressed to Honorable Merrick Garland, Attorney General of the United States, U.S. DOJ, read, “We write to urge the Department of Justice (DOJ) to reopen a Foreign Corrupt Practices Act (FCPA) investigation into Shell and Eni regarding their 2011 purchase of the rights to Oil Prospecting License (OPL) 245, one of Nigeria’s most lucrative oilfields. Available evidence implicates both companies in a scheme that resulted in the payment of $1.1 billion in bribes to Nigerian government officials, including then-President Goodluck Jonathan. Shell and Eni, both registered with the U.S. Securities and Exchange Commission (SEC), continue to profit from the deal in violation of the FCPA.
“Allegations of corruption surrounding OPL 245 began in 1998, when Dan Etete, a convicted money launderer and Nigeria’s former oil minister during the military dictatorship of General Sani Abacha, awarded the OPL 245 license to Malabu Oil & Gas, a company whose principal shareholders were revealed to be Etete himself and the son of General Abacha.
“The rights to OPL 245 continued to be marred with corruption, and in 2000, Malabu’s share registry was changed to reflect a 50% shareholding by Pecos Energy, a company secretly controlled by then-President Obasanjo and his Vice President. Malabu’s license was revoked in 2001 but restored in 2006, with evidence suggesting that bribes paid to then-Attorney General Bayo Ojo played a key role in that decision.
“Shell and Eni then purchased the license from Malabu in 2011 for $1.3 billion with knowledge that a portion of the proceeds would be used to bribe numerous Nigerian officials, including then-President Goodluck Jonathan. Hundreds of millions of dollars passed through various Nigerian shell companies linked to Aliyu Abubakar, a businessman known in his country as “Mr. Corruption.”
“Then-President Goodluck Jonathan was said to have pocketed some $200 million from the sale, and the former Attorney General involved in the 2006 reinstatement of Malabu’s license also purportedly received a sizeable payout. Other funds would later be traced to the purchase of real estate in the U.S., Dubai, Brazil, and Switzerland, as well as luxury vehicles and gems.”