C Explanatory memorandum
by Mr Stefan Schennach, rapporteur
1 Introduction
1. Strategic Lawsuits Against
Public Participation (known as SLAPP lawsuits or SLAPPs for short)
are lawsuits brought against a person or a group with the aim of
silencing that person’s or group’s public participation. The phrase
“public participation” comes from the US constitutional context,
where it refers to petitions and interactions with public authorities,
but it has since come to be understood as “speaking out” in the
broader sense of raising public awareness about an issue.
Note For
the purpose of this report, “public participation” will refer to
any contributions to public debate on matters of public interest,
including a very wide range of journalism, advocacy, communication
and speech. In this respect, matters of “public interest” are all matters
where the public has a legitimate interest, including issues which
affect the public and those which inspire controversy, but not issues
of a purely private nature.
2. Journalists and publishers have always been targets of legal
action and SLAPPs are part of a broader trend that usually begins
with verbal intimidation, which is the most prevalent aspect, before
moving on to threats of a legal nature and possibly also to physical
attacks.
Note However, today all social
watchdogs are under threat and SLAPPs are also initiated against
individuals for their comments on social media.
3. SLAPPs are particularly burdensome and dangerous because they
force defendants to expend time, money and other resources on defending
themselves unnecessarily. The process itself is intended as a punishment,
with the aim of silencing journalists and media outlets. It is a
system of censorship through the threat of litigation. From the
point of view of the claimants, even if they lose, they have still
won.
4. No European country has defined SLAPPs in law. Many academics,
courts, legislators and members of civil society have ultimately
concluded that SLAPPs are not a single type of legal action, but
rather a class of lawsuits that can be identified by a set of defining
characteristics.
5. The claimant:
- brings
the case in response to a publication, or an intended publication,
by the defendant (often a journalist, a media outlet, an activist
or a campaigning organisation) to stop it;
- frequently targets individuals rather than the organisations
(legal entities) they work for (for example, a journalist rather
than their newspaper) because individuals are financially more vulnerable;
- is often in a position of relative power vis-à-vis the
defendant, whether financially, economically, or politically, or
through a combination of these factors;
- advance aggressively framed or spurious arguments but
has, in general, weak legal or factual arguments;
- seeks an exorbitant amount of damages, a public apology,
or both;
- seeks to prolong the litigation, drive up costs and force
the defendant to spend time, money and other resources defending
the case;
- has sent aggressive letters threatening litigation;
- has engaged in other forms of intimidation, harassment
or threats against the defendant;
- has pursued similar cases in the past;
- has initiated, directly or through associated parties,
different co-ordinated legal actions related to the same event,
sometimes with a cross-border element, seeking to make litigation
complex and endless;
- may orchestrate denigratory public relations campaigns
against the defendants, to humiliate and delegitimise them.
Not
every case will possess all of these characteristics, but the more
it does, the more likely it is to be a SLAPP lawsuit.
Note
6. While this list is certainly useful, we still need a proper
legal definition. In a report published in March 2022,
Notethe Coalition
against SLAPPs in Europe (CASE) describes the phenomenon as follows:
“The objective of a SLAPP is not to redress the plaintiff’s breached
legal rights but to intimidate and harass the target into silence.
For the SLAPP litigant the outcome of the lawsuit is therefore generally
beside the point, as the litigation process is enough to advance
the goals of the lawsuit.” It then adds that “SLAPPs are an abuse
of the legal system by wealthy and powerful individuals, who initiate
lengthy, expensive, and commonly baseless litigation aiming to shut
down criticism and efforts to advance accountability. Although SLAPPs
seriously harm the targets both financially and psychologically,
the damage extends to the general public, who are denied the right
to know whenever a critical voice is chilled”. Then, the report
gives the following definition: “abusive lawsuits filed to shut
down acts of public participation, including public interest journalism,
peaceful protest or boycotts, advocacy, whistle-blowing, academic
comments, or simply speaking out against the abuse of power. SLAPPs
target anyone who works to hold the powerful to account or engage
in matters of public interest”.
Note
7. The European Parliament report on “The Use of SLAPPs to Silence
Journalists, NGOs and Civil Society”
Note proposes
another definition: “a claim that arises from a defendant’s public
participation on matters of public interest and which lacks legal
merits, is manifestly unfounded, or is characterised by elements
indicative of abuse of rights or of process laws, and therefore
uses the judicial process for purposes other than genuinely asserting,
vindicating or exercising a right”.
8. Article 3 of the Proposal for a Directive of the European
Parliament and of the Council on protecting persons who engage in
public participation from manifestly unfounded or abusive court
proceedings (“Strategic lawsuits against public participation”)
defines the “abusive court proceedings against public participation”
as “court proceedings, brought in relation to public participation
that are either fully or partially unfounded and have as their main
purpose to prevent, restrict or penalize public participation”.
Note Indications of such
a purpose can be:
a the disproportionate,
excessive or unreasonable nature of the claim or part thereof;
b the existence of multiple proceedings initiated by the
claimant or associated parties in relation to similar matters;
c intimidation, harassment or threats on the part of the
claimant or his or her representatives.”
Note
9. The explanatory memorandum of this proposal explains that
SLAPPs “are groundless or exaggerated court proceedings typically
initiated by powerful individuals, lobby groups, corporations and
state organs against parties who express criticism or communicate
messages that are uncomfortable to the claimants, on a matter of
public interest. Their purpose is to censor, intimidate and silence
critics by burdening them with the cost of a legal defence until
they abandon their criticism or opposition. Unlike regular proceedings,
SLAPPs are not initiated with a view to exercising the right of
access to justice and the purpose of winning the legal proceedings,
or obtaining redress. Instead, they are initiated to intimidate
the defendants and to drain their resources. The ultimate goal is
to achieve a chilling effect, silence the defendants and deter them
from pursuing their work.”
10. Building on the above-mentioned descriptions, SLAPPs are in
essence abusive litigation and legal tactics designed to prevent
the dissemination of information on sensitive issues and to silence
those wishing to report on a matter of public interest. To be more
precise, I would insist on two features and say that SLAPPs:
i consist in legal actions, legal
proceedings or other legal remedies that are initiated or pursued,
or threatened to be, as a means of intimidating, harassing and silencing
an individual or a legal person wishing to inform the public on
a matter of public interest and/or to participate in a public debate
on such a matter or in public affairs;
ii are a frivolous, vexatious or malicious – thus abusive
– use of legal proceedings and guarantees with an aim or a concrete
risk of preventing, hindering or sanctioning public participation.
In this respect, SLAPPs not only discourage and silence those that
are their direct victims (the defendants), but also have a chilling
effect on others, and deter them from speaking out on the same or
similar issues, making “examples” of what could happen to them too.
11. However, it would be counterproductive to qualify a lawsuit
as a SLAPP only when it appears that the claimant’s “main” aim or
purpose is to prevent or hinder public participation. On the one
hand, it can be hard to prove that a given claimant’s aim (amongst
different ones that may coexist) is the main one; on the other hand, what
matters is the combination of an abuse of legal procedures and the
chilling effect on freedom of expression, public debate and public
participation, even assuming that the claimant’s main aim is safeguarding his
or her own interests.
12. Moreover, in a statutory definition to be enshrined in anti-SLAPPs
national legislations I would neither include the reference to a
legal action which is fully or partially unfounded or that lacks
legal merit,
Note nor
the circumstances where the claimant may eventually exploit imbalances
in political, financial or societal power. These are, however, good
“indicators”, that is concrete elements which must be assessed and
taken into consideration with others by the competent courts to
establish the frivolous, vexatious or malicious use of legal proceedings
and legal guarantees.
13. The number of SLAPPs has increased over the years with the
active help of law firms. Journalists’ organisations are no longer
able to handle all the cases, especially in Poland, Serbia, Italy
and Croatia. SLAPPs have an enormous impact, particularly in terms
of self-censorship, and the phenomenon constitutes a form of white-collar
misconduct against journalists and other targets.
14. The experts we heard pointed out that in recent years, and
particularly since the beginning of the Covid-19 pandemic, there
has been a noticeable rule of law backsliding throughout Europe,
not least because of certain restrictive measures taken by the authorities.
There is also an increasing polarisation of politics and public
life in general, marked by verbal attacks by politicians on journalists
that go beyond mere “freedom of expression”. Against this backdrop,
SLAPPs have proliferated, abusing and misusing legal procedures
that are intended to serve a legitimate purpose, such as protecting
privacy or reputation.
15. What all SLAPPs have in common is not so much the threat of
litigation, but the misuse and abuse of that right. SLAPPs may thus
be regarded as a form of “lawfare”, a way of manipulating the judicial
system and undermining its inherent protective role by misusing
it to inhibit the right to freedom of expression and the right of
citizens to receive information on matters of public interest.
16. My report looks at trends in the type and number of cases
being brought and their impact on defendants and examines the laws
and procedures that appear to facilitate such litigation. It then
reviews measures currently being considered to address the problem,
including by the media and civil society, and assesses the effectiveness
of anti-SLAPP legislation in countries outside Europe that have
already taken action in this regard.
17. My analysis is based on the expert report by Mr Peter Noorlander,
consultant on human rights and media law, to whom I would like to
express my sincere gratitude for his expertise and willingness to
assist. It also draws on the hearings held in the course of the
work of the Committee on Culture, Science, Education and Media
NoteNoteNoteNoteNoteand
the contributions of the experts who participated in these hearings.
18. I particularly commend and thank the Commissioner for Human
Rights of the Council of Europe for taking a very strong stand against
SLAPPs, both at the conference co-organised by the Council of Europe
and CASE in Strasbourg on 20 October 2022 and when she spoke at
our hearing. She rightly reminded us that parliamentarians can make
a difference in the Parliamentary Assembly of the Council of Europe
and in their own countries and I hope that this report will help
us to achieve that.
2 SLAPPs: trends and impact
2.1 Trends
in SLAPP cases
19. In the absence of a precise
legal definition, there are no official statistics on the number
of SLAPP cases, neither at national level nor in the work or decisions
of international organisations. The European Court of Human Rights
used the term SLAPP for the first time in a judgment of 15 March
2022.
Note The
situation could change if States adopted anti-SLAPP measures; this
would also make it easier for international organisations, including
the European Commission for Democracy through Law (Venice Commission),
to monitor the implementation of such measures.
20. There is, however, evidence gathered by civil society organisations
that strongly suggests that the number of SLAPPs is high and that
it is growing. In its report of March 2022,
Note CASE
identified 570 SLAPP cases in 29 European countries between 2010
and 2021, noting an increase in the number of cases of 43.5% in
2019, 15.2% in 2020 and a slight decrease of 2.6% in 2021. The report
draws the following conclusions: the number of SLAPPs is increasing;
the main targets are journalists and media outlets followed by activists;
most cases are based on national defamation laws; litigants are
in a position of power; cases are most often won by the defendants
or dropped but this does not diminish the harm they cause. In another
report published in 2022, the freedom of expression organisation,
ARTICLE 19, examined laws and cases in Belgium, Bulgaria, Croatia, France,
Hungary, Ireland, Italy, Malta, Poland, Slovenia and the United
Kingdom and found a large number of SLAPP cases.
Note
21. CASE has now published its 2023 report,
Note according
to which “[y]ear after year, SLAPPs are increasingly a worrying
threat to democracy across Europe”. This report lists over 820 SLAPPs,
compared with 570 in the previous year. Poland appears as the European
country with the highest absolute number of SLAPPs recorded, but
in 2022 a notable number of lawsuits were also recorded in Malta
(which is the country with the highest number of cases recorded
for every 100 000 people), France, the United Kingdom, Croatia, Greece,
Türkiye and Georgia.
Note
22. It should be noted that in Europe, many SLAPP cases are brought
in the United Kingdom because of the very high cost of litigation,
which acts as a strong deterrent to defending a case, and because
it is easy to bring an action, as the law allows foreign claimants.
The procedures are complex, making it hard for targeted journalists
from the Russian Federation, Sweden, Ukraine, Malta, the Netherlands,
etc to defend a legal action. This is also why there are so many
UK law firms specialising in this type of case.
23. The phenomenon is however Europe-wide and not limited to a
few countries.
NoteNote There
are literally no countries that are immune and those that claim
to have none or only a handful of cases are likely in a situation of
under-reporting. For example, until recently, there were no reports
of SLAPP cases in Georgia. This was because no organisation had
been reporting on them, however, and when the NGO Georgia Democracy Initiative
researched the issue in 2022, it found that there were in fact many
SLAPP cases, such as the complaints brought by 11 different municipal
mayors against the TV channel “Mtavari Arkhi”, copying and pasting
the same text and claiming the same amount of money (GEL 55 555).
Note
24. According to the CASE 2023 report, the targets of SLAPPs tend
to be independent media outlets, journalists working for them who
are liable to be sued individually, fact-checking organisations,
academics, citizen groups and civil society organisations reporting
on issues of public interest. The data published by CASE show that
journalists (248 lawsuits, that is 30.2%) and media outlets (203
lawsuits, that is 24.7%) are most likely to be sued, followed by
editors (98 lawsuits, that is 11.9%) and activists (80 lawsuits,
that is 9.7%). Corruption, government, business and environmental
issues are the topics that are most frequently at the origin of
SLAPPs. Claimants are often businesses or businesspersons (335 lawsuits,
that is 40.8%), politicians or people in the public service (227
lawsuits, that is 27.6%) or state-owned entities (113 lawsuits,
that is 13.7%), but also NGOs, members of the judiciary and security
services.
Note Most cases are based
on defamation laws and regulations but other laws are also invoked,
particularly data protection and privacy laws.
25. While SLAPPs largely target the media, human rights defenders,
NGOs and activists are also affected, mainly in three fields: migrants’
rights, LGBT rights and environmental advocacy. In Poland, for example,
LGBT rights defenders who were raising awareness about anti-LGBT
statements and family charters that had been adopted by some local
governments were sued for defamation by ultra-conservative groups
and some municipalities.
Note For this reason, ILGA-Europe, an organisation
defending LGBTI rights in Europe, has called on the European institutions
to also consider how to combat SLAPPs against LGBTI activists.
Note Environmental activists have been
particularly targeted by SLAPPs. In June 2021, Kelkos Energy, a
large Austrian-based hydropower management company with operations
in Kosovo*, used defamation lawsuits
and threats of such lawsuits to target activists who had spoken
out publicly about the environmental impact of hydropower plants operating
in the country’s natural protected areas and the lack of scrutiny
by the Kosovo authorities in the process of issuing operating licences
for such plants.
Note In Serbia, environmental organisations
campaigning to protect the Fruska Gora National Park accused the
owners of the Galens Invest company of trying to intimidate them
by bringing five lawsuits worth around 2 million dinars (€17 000).
Note
26. Regarding harassment and SLAPPs in Hungary, the UN Special
Rapporteur on the promotion and protection of the right to freedom
of opinion and expression, Irene Khan, issued a statement on 11 May
2022, expressing serious concerns about recurring campaigns of hate
speech, harassment or stigmatisation of journalists and human rights
defenders working on migrant, refugee and LGBTI rights. Ms Khan
called on the Hungarian Government “to promote and recognise the
important contributions that these individuals make in building
a more just and inclusive society”, and to “introduce legislation
to counter strategic lawsuits against public participation ... and
repeal the provision in the Criminal Code relating to defamation
as a criminal offence”.
Note In the case of Serbia, the Council
of Europe Commissioner for Human Rights noted “the prevalence of
smear campaigns, threats and intimidation and the growing problem
of strategic lawsuits against public participation (SLAPPs) targeting
journalists, human rights defenders and civil society organisations”
and urged the authorities to “spare no effort to create a safe and
conducive environment for the work of the media and civil society”.
Note In March 2023, she also called on
Bosnia and Herzegovina not to recriminalise defamation as that would
“strengthen the trend of stifling freedom of expression”,
Note and the Assembly cannot but endorse
this call.
27. In the media and journalism sector, SLAPPs tend to target
those perceived as critical voices. Lawsuits may be brought by claimants
in the public or private sector, which may also work in tandem.
The most notorious example of this is the litigation against Daphne
Caruana Galizia, who had 47 defamation cases pending against her
not only in Malta, but also in the United States and the United
Kingdom. Another typical example is the litigation against the Polish
daily Gazeta Wyborcza, which had more than 60 defamation lawsuits
pending against it by the end of 2021.
NoteIn France,
companies affiliated with the Bolloré group have filed more than 20 defamation
suits against journalists, lawyers, activists and NGOs investigating
allegations of human rights abuses on palm oil plantations in Africa.
Note In Serbia, at the beginning of 2022,
the investigative media outlet KRIK had 10 ongoing lawsuits against
it and its journalists: eight civil lawsuits, one criminal lawsuit
and one misdemeanour procedure, seeking a total of nearly US$1 million
in damages – three times its annual budget.
Note In Croatia, a survey carried out
by the Croatian Journalists’ Association in April 2021 identified
924 pending lawsuits against journalists and media in Croatia. It
is not uncommon for cases to be initiated by senior politicians,
members of the government or civil servants.
Note
28. Not all SLAPP suits end up in court, but the anticipated burden
of defending a case can be such that the mere threat of litigation
is enough to make an activist or media outlet desist. The number
of letters threatening litigation is far greater than the number
of cases brought before the courts and their impact on freedom of expression
is just as damaging.
29. Among the most egregious SLAPPs are those that have a cross-border
aspect, forcing defendants to defend themselves in a foreign country,
in a foreign language and in a legal system that they do not understand. According
to CASE, about 10% of SLAPPs have a cross-border aspect.
Note Most of these cross-border lawsuits are
brought in the United Kingdom,
Notewhich
is really unique in this respect in Europe. ARTICLE 19 stated that “several
law firms, most notably in the United Kingdom but also in other
countries, have developed very aggressive tactics to essentially
bully journalists and media outlets into self-censorship, usually
on behalf of wealthy clients.”
Note When a journalist
reaches out to a politician or business entity to ask questions
in the course of writing a potentially critical article about them,
the response they receive back is often from a law firm threatening
legal action. The Guardian receives two to three such letters per
week – designed to intimidate and to stop the newspaper from publishing
certain articles.
Note The situation
in the United Kingdom is all the more worrying as law firms continue
to work for Russian oligarchs who have been subject to international
sanctions as a result of the Russian Federation’s war of aggression
against Ukraine, the most notorious one being the founder of the
Wagner mercenary group, the recently deceased Yevgeny Prigozhin.
Note
2.2 The
democratic, financial and personal impact of SLAPPs
30. The study of 2021 by the European
Parliament
Note neatly sums up
the fact that SLAPPs are filed to intimidate, silence and drain
the defendant’s financial, economic and psychological resources
and to send a signal to others. For those who initiate such proceedings,
“success” means their threats had the desired effect and does not
necessarily imply victory in court. Success may be claimed when
a defendant issues an apology or withdraws a publication before
the case comes to trial, when a media outlet’s insurance premiums
go up because it has been sued or when it has been forced to spend
large sums defending a case. Success is also diverting defendants’
resources and time from the coverage of important issues of public
interest. Therefore, SLAPP claimants may even claim success when
they lose in court. Former US President Donald Trump’s words about
the trial he lost against a journalist speak volumes: “I spent a
couple of bucks on legal fees and they spent a whole lot more. I
did it to make his life miserable, which I’m happy about.”
Note
31. This kind of “bullying” approach to litigation is characteristic
of SLAPPs. Some journalists have testified about the impact of such
lawsuits on their work: it affects their livelihood, their ability
to work, their financial and economic situation and even their family
life. Well documented books and publications have been withdrawn for
fear that defending a meritless legal claim would bankrupt the publisher.
Note
32. Given the important role in society of the media and other
watchdogs who are silenced by abusive lawsuits, SLAPP suits not
only harm journalists and the media; they deprive citizens of information
about potentially important issues and ultimately undermine democracy,
which cannot function without freedom of expression and independent
media able to report without fear of reprisal. Snezana Green, senior
legal counsel at the Media Development Investment Fund, a US-based
NGO providing financing for independent media, has witnessed dozens
of SLAPP cases. She notes that “[t]he practice of abusing legal
systems by those in power to silence critics has reached global
proportions. Its damage is far-reaching and curbing it is an imperative
for democracy and maintaining peace.”
Note
33. Dunja Mijatović, the Commissioner for Human Rights of the
Council of Europe, has rightly stated that SLAPPs “pose a significant
and growing threat to the right to freedom of expression” and that
they have the effect of “perverting the justice system and the rule
of law more generally”.
Note CASE
argues that SLAPPs “weaken democracy by preventing individuals and
civil society organisations from engaging in public debate and impeding
the exercise of rights to free speech, assembly and association”.
Note This
applies not only to political expression, but also to all reporting
and forms of expression on issues of public interest, including
the activities of companies. As the UK House of Lords observed in
relation to a SLAPP case, “[t]he power wielded by the major multi-national
corporations is enormous and growing. The freedom to criticise them
may be at least as important in a democratic society as the freedom
to criticise the government”.
Note
2.3 Striking
the necessary balance between access to justice and freedom of expression
34. I would like to stress that,
since SLAPPs constitute an abuse of legal process, measures to tackle
the phenomenon do not restrict access to justice: the justice system
is not intended to be used by claimants who wish to bring a lawsuit
for the sole purpose of harassing a defendant. As the General Secretary
of the European Federation of Journalists, Ricardo Gutierrez, rightly
pointed out at the hearing on 22 November 2022, “journalists are
not above the law and they can be sued on motivated grounds. But
journalism should not be criminalised, especially by SLAPPs or defamation
laws”.
35. It is crucial that anti-SLAPP measures do not undermine access
to justice for those with legitimate claims. The European Convention
on Human Rights (ETS No. 5) requires States to protect the right
to privacy, which includes protection against genuine invasions
of privacy and serious attacks on reputation, as well as other rights.
However, this only applies to claims with merit
Noteand
even then, the European Court of Human Rights has made it clear
that such protection must not undermine the exercise of the right
to freedom of expression. Moreover, following the case law in
Lingens v. AustriaNote and
in many subsequent cases, the limits of acceptable criticism are
wider as regards a politician, a public figure or a large public
company.
36. As the European Court of Human Rights pointed out in one of
the first SLAPP cases to come before it, concerning two environmental
activists sued by McDonald’s: “in a democratic society even small
and informal campaign groups … must be able to carry on their activities
effectively and ... there exists a strong public interest in enabling
such groups and individuals outside the mainstream to contribute
to the public debate by disseminating information and ideas on matters
of general public interest such as health and the environment.”
Note
37. Moreover, States have a duty to ensure that defendants in
privacy and defamation cases, and in litigation affecting the exercise
of their rights generally, receive a fair trial that respects the
principle of equality of arms. In the case involving McDonald’s
referred to above, the Court found that the severe inequality of
arms between the parties constituted a violation of the applicants’
right to a fair trial and their right to freedom of expression.
Note The
decision came after a trial that lasted 313 days, the longest in
English legal history, and involved 40 000 pages of documents and
130 witnesses. McDonald’s is thought to have spent more than £10 million
on defending the case.
Note Fair
trial and access to justice arguments are therefore equally relevant
for defendants in SLAPP cases.
3 Legal
analysis of SLAPPs
3.1 SLAPP
lawsuits use a wide range of laws and procedures
38. Typical abuse of law by SLAPP
claimants are those which make it relatively easy to bring claims
and which place the burden of proof on the defendant. Defamation
laws are by far the most abused: claimants need only submit that
an article or report damages their reputation and the burden of
proof shifts to the defendant to mount a defence.
Note Related
laws on “insult” and “honour” are also easily abused: a claimant
merely needs to allege that a statement affects their honour or
that it is insulting, and the burden shifts to the defendant to
either disprove that or mount a defence. But other laws are also
easily abused. When media reporting or articles allege corruption,
financial irregularities or other wrongdoing and include aspects
that relate to the personal sphere (such as financial affairs or
family relations), a claimant can abuse privacy laws to bring a
SLAPP claim. In a growing number of countries, data protection laws
are also being abused, allowing claimants to sue for any inaccuracy
in personal information, even if the information is not defamatory.
For example, a family of Hungarian entrepreneurs was able to use
data protection laws to prevent reporting on certain aspects of
their business activities.
Note
39. In many countries, privacy and defamation claims may be brought
under both civil and criminal law, and civil and criminal cases
are often brought concurrently. Other laws reportedly abused for
SLAPP purposes include copyright and trademark laws, anti-harassment
laws and those governing various minor criminal offences including,
during the Covid-19 pandemic, alleged breaches of lockdown rules.
Note A
study carried out on behalf of the European Union in 2021 showed
that the range of laws that could be abused for the purpose of SLAPPs
includes legal provisions on taxation, social protection, use of
personal data, maritime safety, juvenile protection, urban planning
and civil society organisations.
Note
40. One of the most striking features of SLAPP cases is the length
of time that they take. While legal cases can often drag on for
various reasons, SLAPP claimants typically exploit legal procedures
to spin out a case over years purely so as to drive up costs and
force the defendant to expend time, resources and emotional energy.
ARTICLE 19’s analysis of SLAPP cases found that most cases were
pending for around three years, and in many countries some cases
were pending for up to 10 years.
Note There
is no single procedural feature that is conducive to SLAPP suits
taking such an inordinate amount of time; it is a combination of
factors, including, importantly, the willingness of judges, insensitive
to the burden that defending a SLAPP imposes on persons concerned,
to grant time extensions and to repeatedly postpone court hearings
at short notice.
3.2 Disproportionate
legal costs
41. Because SLAPP cases typically
take so long, legal costs can mount fast. While for claimants this
is a trivial matter, for defendants it can become an issue of financial
survival. Lawyers’ bills can quickly run into tens or hundreds of
thousands of euros. This is a problem particularly in Ireland and
in the United Kingdom.
42. The British Royal Institute of International Affairs, Chatham
House, was recently forced to drop the name of a Russian banker
from a report after he threatened to sue for defamation and the
organisation was advised that legal costs would come to £500 000
even before the case was heard.
Note In her intervention at the hearing held
on 1 June 2023, Ms Beatriz Brown, who is leading the team working
on SLAPPs at the UK Ministry of Justice, stressed that costs could
even go beyond £1 000 000 and that the uncertainty of mounting costs
was particularly concerning. In Ireland, the costs for the initial
stage of a case are estimated at €250 000;
Notebetween 2010
and 2015, it is estimated that Irish media spent €30 million defending
themselves against SLAPPs.
Note The publication
openDemocracy has written of the chilling effect of a defamation
case that was threatened against it by a politician: “We were advised
that if we went to court to defend our reporting, we risked bankrupting openDemocracy.
We had staff worrying they would lose their homes. [The claimant]
dragged the ordeal out over two years [which] cost us a lot. We
spent months dealing with legal letters, burning through thousands
of pounds and precious time that would otherwise have been spent
on our journalism. The psychological toll was even higher … Experts
speak of the ‘chilling effect’. These are the stories that go unwritten,
the leads left unpursued, while the fear of being put out of business
hangs over you.”
Note
43. Costs are a serious issue in other European countries as well.
Note In Belgium,
news website Apache ran up legal costs of €125 000 in several cases
brought against it by a property developer who admitted to the journalists,
in a WhatsApp message, that suing them had become “his hobby”.
NoteIn Italy,
legal fees typically run into tens of thousands of euros;
Noteone journalist
who lost a case and crowd-funded €18 000 to pay the award and legal
fees did not appeal for fear of incurring more costs.
Note In Malta, Daphne Caruana Galizia
had her bank account frozen when two government officials demanded
€47 000 in defamation damages.
Note These
are huge sums of money for a small media outlet or for an individual
journalist. Journalists and media outlets who defend a case take
on a significant financial risk, and even if they win, they do not
always recoup their money.
Note In a report
on SLAPP cases in Ireland, the authors explained that the relatively
low number of court cases in that country was directly related to
costs. Given the near impossibility of budgeting for defamation
litigation and the unpredictable nature of jury trials, press publishers
are faced with the dilemma of whether to carry on or settle to avoid
the cost of litigation. As a result, there are relatively few SLAPP
cases to report on, as most are settled out of court as a precaution.
Note
44. These examples show that if a media outlet simply cannot afford
to defend potential litigation, it will not publish. The result
is that reports on matters of public interest go unpublished or
are withdrawn.
3.3 Defendants
currently have few options to have cases dismissed
45. Laws that are abused for SLAPP
purposes must strike an appropriate balance between the right to freedom
of expression and the interest that the law seeks to protect (for
example, reputation). Thus, appropriate public interest defences
must be available under defamation and insult laws, privacy and
data protection laws and the various other laws mentioned above.
The European Court of Human Rights has developed a clear body of
case law on these defences.
Note However, while these defences are
important, they do not address the two most pernicious features
of SLAPP lawsuits: the costs and the time it takes for a SLAPP case
to be finally defeated. The Court has clearly stated that both of
these issues may infringe the right to freedom of expression,
Note but the response at the national
level lies in laws and procedural rules.
46. A key feature of effective anti-SLAPP laws in some countries
is the ability to have the cases dismissed at the earliest possible
stage. By keeping such a procedure as simple as possible, costs
are minimised and defendants are able to obtain justice swiftly.
For example, under California’s anti-SLAPP law, a defendant can file
a motion to have a case dismissed if it was brought in response
to “any written or oral statement or writing made in a place open
to the public or a public forum in connection with an issue of public
interest” unless the plaintiff can establish that the action is
likely to succeed.
Note This puts the burden of proof on
the claimant and is a key safeguard. In most European countries,
however, while early dismissal is theoretically possible, in practice
there is a high threshold for such early dismissal, meaning that
a case has to be heard on the merits before a defendant can prevail.
This is expensive and burdensome for the defendant.
47. Even in those European countries like France or Belgium where
a defendant can “countersue” for vexatious litigation, such cases
are rarely successful and require the defendant to go through another
lengthy court case, which is precisely the constraint that a SLAPP
lawsuit seeks to impose. On the very rare occasions when counterclaims
have been successful, the penalty imposed on the party bringing
the original lawsuit has been modest (approximately €10 000 in France)
and unlikely to deter multinationals or billionaires from bringing claims
in the future.
Note
4 Overview
of current and proposed anti-SLAPP measures
4.1 Anti-SLAPP
measures taken or being considered at international level
48. The European Commission has
made tackling SLAPPs a priority in its work under the European Democracy
Action Plan. It has announced two initiatives: (1) a proposal for
a directive on SLAPP cases in civil matters with cross-border implications,
Note and (2)
a recommendation to provide guidance to member States on how to
take action against SLAPP cases that only fall under national law.
Note The
draft Directive proposes that courts should be empowered to decide
on the early dismissal of “manifestly unfounded” court proceedings against
public participation, with the burden of proof being on the claimant
to show that the claim is not unfounded, and that claimants should
bear all costs and be subject to penalties and damages where proceedings
are found to be “abusive”.
Note The
proposal distinguishes between “manifestly unfounded” and “abusive”
court proceedings and, although widely welcomed, it has been suggested
that all “abusive” lawsuits should be dismissed early.
NoteNoteNote I regret to note, however that some
EU member States are trying to water down the scope of the future
directive, to the dismay of journalists’ organisations.
Note The recommendation,
which is addressed only to EU member States, recommends that similar
safeguards should be available in cases that do not have any cross-border
implications.
49. The other key text being considered at international level
is the recommendation on strategic lawsuits against public participation
(SLAPPs) of the Committee of Ministers of the Council of Europe.
A Committee of Experts has been set up to draft this recommendation
by the end of 2023.
Note My report has been drawn up in parallel
with these recommendations, and I commend the constructive manner
in which the Parliamentary Assembly and the Council of Europe’s
Directorate General - Human Rights and Rule of Law have worked together
to achieve an outcome that will have a far-reaching impact in the
Organisation’s member States.
4.2 Anti-SLAPP
measures taken or being considered at national level
50. At national level, anti-SLAPP
legislation is under consideration or has been announced in Malta, Lithuania,
Ireland and the United Kingdom.
51. In Ireland, a formal review of the Defamation Act was published
in March 2022 and the Irish Government subsequently announced its
intention to enact legislative reform focused on bringing down legal
costs, limiting the high levels of damages, setting a higher threshold
for claimants’ ability to sue and providing clearer protection for
public interest journalism.
Note
52. In Malta, legislative and constitutional amendments were published
which together seek to tackle SLAPPs by limiting the execution of
disproportionate judgments obtained in foreign jurisdictions and
enabling early dismissal for cases that are
prima
facie manifestly unfounded. The proposals have been criticised
by civil society organisations and by the Representative on Freedom
of the Media of the Organization for Security and Co-operation in
Europe (OSCE), both of whom have stated that the recommendations
did not go far enough and that a comprehensive anti-SLAPP regime
was needed instead.
Note
53. In the United Kingdom, the government has announced that it
will introduce a mechanism to allow for the early dismissal of SLAPPs
and measures to limit legal costs. To this end, it launched a “Call
for Evidence” in 2022.
Note Under the announced reforms, a court
will apply a three-part test to determine whether a case should be
dismissed early. First, it will assess whether the case is against
activity in the public interest; in this respect, the case should
relate to a large-scale public interest issue (such as corruption)
to distinguish a SLAPP from a run-of-the-mill defamation action
which would concern issues of smaller significance. The court will
then consider whether there is evidence of abuse of process and
lastly, whether the case has sufficient merit.
Note These
measures should be introduced in parliament as a matter of urgency.
Note In addition to these legislative measures,
the UK Solicitors Regulatory Authority updated its guidance, urging
members not to represent clients in SLAPP cases and to report any
colleagues who do so; more than 20 investigations have since been launched.
Note
54. I would also like to draw attention to the situation beyond
Europe’s borders. The United States is the legal “birthplace” of
SLAPPs, so it makes sense that the first legislation to counter
them was passed by US states.
Note There
are, broadly speaking, two approaches: (1) anti-SLAPP legislation
which focuses on “public participation” in the narrow sense of protecting
only speech that is related to “procuring favourable government action”;
(2) broader protection against lawsuits that are “brought primarily
to chill the valid exercise of the constitutional rights of freedom
of speech”.
Note The second approach is considered
to be the most effective.
Note Courts have held that the two defining
characteristics of a SLAPP are the chilling effect of the action
and the public interest involved.
Note The
burden is on the claimant to show a likelihood of success, otherwise
the court must dismiss the case. There is currently no federal anti-SLAPP
law.
Note
55. In Canada, too, a few provinces have introduced anti-SLAPP
measures. Quebec, which like most European countries has a civil
law tradition, provides in its Code of Civil Procedure that the
courts may declare that a judicial application or pleading is abusive
if it is “clearly unfounded, frivolous or intended to delay” or because
of “conduct that is vexatious or quarrelsome”; it may also consist
in a “use of procedure that is excessive or unreasonable or that
causes prejudice to another person, or attempts to defeat the ends
of justice, particularly if it operates to restrict another person’s
freedom of expression in public debate”.
NoteOntario
also has effective anti-SLAPP legislation: once a defendant establishes
that the matter relates to an issue of public interest, the claimant
must demonstrate that the case has “substantial merit”, that the
defendant has “no valid defence”, and that the harm suffered from
an early dismissal would outweigh the public interest in protecting the
freedom of expression. The Law Reform Commission recently reviewed
the law and found it to be working well; it has also been endorsed
by the Supreme Court.
Note
56. In Australia, legislation in the Australian Capital Territory
provides protection against SLAPPs but requires the defendant to
demonstrate an “improper purpose”. In practice, this is a high threshold
and does not provide effective protection.
Note
4.3 Measures
taken by the media and civil society stakeholders
57. SLAPPs are a problem caused
by the exploitation of laws and procedural rules by claimants with malicious
intentions. The media and civil society cannot tackle the root causes
of SLAPPs, but they can take some steps to build resilience to them.
58. Civil society organisations have a vital role to play in monitoring
the phenomenon of SLAPPs in Europe in order to assess the extent
of the problem and to raise awareness among potential victims and
judicial authorities. Currently, the Council of Europe’s Platform
tracks the most significant SLAPP cases against journalists and
media outlets, but other organisations also fulfil this task, such
as the CASE coalition, the European Centre for Press and Media Freedom’s
(ECPMF) Mapping Media Freedom
Noteand SafeJournalists
Note in the Balkans.It
is important to support these organisations so that they can extend
their work to countries where SLAPPs are still under-documented.
59. With donor support, civil society has begun to address the
costs of defending SLAPP cases by establishing an insurance mechanism.
Insurance is often unavailable or unaffordable for smaller outlets
and freelance journalists and to remedy this, seed funding for a
global “Reporters Mutual” insurance fund was announced in June 2022.
NoteThe goal
is for the fund to become a viable, self-sustaining, non-profit
entity that is expected to be operational soon.
Note Another way of ensuring
the availability of low-cost or even free defence lawyers is through
legal defence funds or in-house lawyers working for journalists’
associations. The ECPMF runs a legal defence fund and several other
organisations have pooled their resources in the Legal Network for Journalists
at Risk.
Note Pooling legal support resources for
pre-publication vetting is also an effective way to build media
resilience. Examples of such efforts can be found in Bosnia and
Herzegovina, where Vaša prava BiH provides legal services including
pre-publication vetting, and in Malta, where the Daphne Caruana
Galizia Foundation has engaged one of the country’s leading media
lawyers to provide pre-publication vetting to independent media.
Note
60. Speaking out and showing solidarity are also important. For
many journalists, getting sued is a nerve-wrecking and frightening
experience, and the support of colleagues is very important, whether
formally through journalists’ associations or informally through
networks and groups of journalists. This eases the emotional burden
and may help in accessing financial support, whether through crowd-funding
or through a special defence fund. When journalists speak out, both
in support of each other and when they receive threatening letters,
it will also help raise awareness of the problem and build broader
public support for anti-SLAPP measures. Lastly, greater awareness
of SLAPP cases will help profile claimants who are particularly
litigious, which can assist courts in identifying SLAPP cases.
61. These various forms of support (legal, financial, psychological
and logistical) are currently provided by professional associations,
NGOs and independent legal aid organisations.
Note However, it would be advisable to
develop public structures – linked to the State – or at least to
invite States to guarantee access to these forms of support under
favourable conditions, in order to provide tailor-made legal services
to SLAPP victims.
5 Conclusions
62. Taking action against SLAPPs
or enacting legislation to combat them is not a question of granting “privileges”
to journalists or activists but of defending the right of citizens
to free and independent information. At present, only a handful
of countries in Europe are considering legislative action and the
proposed EU directive will only apply to a narrow category of cases
with cross-border implications. Given the damage that SLAPPs do
to democracy, however, the need for effective countermeasures is
clear.
63. One of the first ways to combat SLAPPs is to publicly denounce
perpetrators. This is happening with increasing frequency in Europe,
at least in countries where defendants have sufficient confidence
in their judicial system. CASE, for example, runs an annual SLAPP
competition to “name and shame” the worst offenders. The second
way is to let justice take its course, provided that all guarantees
of judicial independence are respected. The third is to enact specific
legislation to prevent SLAPPs as such, either in the courts or through
independent regulatory bodies.
64. In particular, I hope that the Assembly will focus its attention
on anti-SLAPP legislation and encourage States to take action in
this regard. The root cause of the SLAPP phenomenon is the existence
of legislation that is too easily abused. Measures should therefore
be taken to prevent claimants from misusing the judicial process
to bring SLAPP actions. To this end, the draft resolution sets out
a number of guiding principles. I wish to insist here on some of
them.
65. First, the frivolous, vexatious or malicious nature of a legal
action, once determined (by courts), not only is a key element to
qualify it as a SLAPP but should also be the grounds on which the
Legislature and the Judiciary should justify adequate responses/countermeasures
namely (though not only) in terms of early dismissal, remedies and
dissuasive measures.
66. Ideally, procedural rules in place should provide for the
request for an early dismissal being introduced before the court
where the case is pending. In more concrete terms, when the right
to freedom of information and public participation are at stake,
procedural rules should compel the claimants to introduce their
demands and their legal justification in the initial application,
and to list all means of proof within a strict deadline after the case
is registered. The defendant should have the possibility to react
to the initial application and demands by the claimant, requesting
an early dismissal. The same judge (tribunal or court) who has jurisdiction
over the main application should have jurisdiction to assess the
counterarguments raised by the defendant for an early dismissal
and either declare the application inadmissible or dismiss it early.
The claimant should not have the possibility to modify the initial
pleadings. This should not exclude, however, the possibility to
present arguments in response to the pleadings of the defendant
and to the request for an early dismissal.
67. Concerning remedies, full compensation of damages for SLAPP
victims is, of course, key. Full compensation of damages is a general
principle of civil law, and the issue is more how to ensure its
effective implementation. It is important that the payment of damages
is “prompt”, and a delay in payment should entail an automatic increase
in the amount which is due. Moreover, damages allocated to the defendant
because of the moral prejudice he or she suffered should never be
symbolic when an action is qualified as a SLAPP; in this respect,
anti-SLAPP legislation should clarify how the immaterial damage
(namely resulting from the psychological/emotional distress) should
be established, taking account, among others, of:
- the amount of damages requested
by the claimant;
- financial guarantees which the defendant had to offer;
- power imbalances and pressure exerted before and during
the litigation procedure (including via media and social media campaigns
targeting the defendant);
- the length of the procedure.
68. Member States should establish effective, proportionate and
dissuasive penalties to deter SLAPPs, and anti-SLAPP legislation
should provide for punitive damages and fines. Many legal systems
do not have punitive damages and might find it difficult to establish
them. However, this is a political decision, and we must encourage
it. By the way, I would urge decision makers who prefer not to set
“punitive damages” to consider at least the possibility to establish
an absolute presumption that a minimal amount of immaterial damage
is always present, where the frivolous, vexatious or malicious nature
of the claimant’s action is established. Fines should not be so
difficult to introduce: a court which ascertains the frivolous,
vexatious, or malicious nature of the claimant’s action should be
entitled to sentence the claimant to pay a fine to the State because
of an abusive use of the legal system. In addition to punitive damages
and fines, I also consider that “naming and shaming” the authors
of SLAPPs, by making court decisions on SLAPPs public would be useful.
69. The media and civil society should also be encouraged to adopt
measures such as establishing an insurance mechanism or collective
defence funds, pooling of resources for pre-publication legal review
and the reporting of SLAPPs, especially in countries where journalists
themselves are not yet sufficiently aware of the phenomenon. Raising
public awareness would also help to shed light on how SLAPPs threaten
democracy.
70. Lastly, I would like to stress that SLAPPs are a pan-European
phenomenon that should be faced regionally, addressing in a coherent
manner both domestic and cross-border cases. Developing multilateral
co-operation at European level is key to countering SLAPPs effectively.
There is a need to strengthen judicial co-operation, consider smart
procedural rules to avoid forum shopping and multiple SLAPPs in
different States, set safeguards against judgments in favour of
SLAPPs, provide for mutual recognition of decisions which establish
that an action was a SLAPP and apply dissuasive measures.
71. To conclude, this report is being considered at a time when
political awareness of SLAPPs is maturing, both in member States
and in international organisations. The European Union is discussing
a directive on this subject and a recommendation of the Committee
of Ministers to member States on countering the use of SLAPPs is
under preparation. The Assembly’s work is part of this political
momentum and I hope that this report will add weight to the efforts
of all international institutions, as well as to those of our national
parliaments, to put an end to this particularly insidious type of
threat to freedom of expression. In this perspective, we must call on
the Committee of Ministers to adopt a strong recommendation, in
line with expectations.
