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Countering SLAPPs: an imperative for a democratic society

Committee Opinion | Doc. 15879 | 08 December 2023

Committee
Committee on Legal Affairs and Human Rights
Rapporteur :
Mr Davor Ivo STIER, Croatia, EPP/CD
Origin
Reference to committee: Doc. 15419, Reference 4625 of 24 January 2022. Reporting committee: Committee on Culture, Science, Education and Media. See Doc.15869. Opinion approved by the committee on 1 December 2023. 2024 - First part-session

A Conclusions of the committee

1. The Committee on Legal Affairs and Human Rights welcomes the report prepared by Mr Stefan Schennach (Austria, Socialists, Democrats and Greens Group) and supports the draft resolution and recommendation.
2. The report addresses Strategic Lawsuits Against Public Participation (SLAPPs): litigation or other legal tactics designed to prevent, hinder, or sanction the dissemination of information on matters of public interest. The report demonstrates that SLAPPs are widely used in Europe to target journalism, advocacy, communication and other speech, and threaten to stifle the public discourse which is essential for the proper functioning of a free society. Furthermore, there are inadequate legal protections for the targets of SLAPPs, leaving a large range of actors vulnerable to their stifling effect (including journalists, media organisations and civil society). The draft resolution urges member States to enact a range of anti-SLAPP measures. The draft recommendation invites the Committee of Ministers to adopt a bold recommendation on countering the use of SLAPPs, following the proposals of the Committee of Experts on Strategic Lawsuits against Public Participation of the Steering Committee on Media and Information Society.
3. The Committee on Legal Affairs and Human Rights shares the concerns expressed in the report and considers the prevention of SLAPPs a high priority. It proposes to strengthen the draft resolution, mainly by clarifying certain definitions, by further setting out the relevant legal context for anti-SLAPP reforms within the European human rights framework, and by introducing additional specific anti-SLAPPs measures.

B Proposed amendments

Amendment A (to the draft resolution)

At the end of paragraph 2, add the following sentence:

“The disclosure process in SLAPP cases can also threaten the protection of journalists’ sources.”

Amendment B (to the draft resolution)

Replace paragraph 3 with the following paragraph:

“SLAPPs are systematically featured by two interconnected traits: i) they consist in legal actions that are initiated or pursued or threatened to be, to intimidate, harass or silence their target; and ii) they misuse or abuse legal proceedings and legal guarantees to prevent, hinder or penalise freedom of expression on matters of public interest and the exercise of rights associated with public participation.”

Amendment C (to the draft resolution)

In paragraph 4, replace the third and fourth sentences with the following sentence:

“The claimants or their lawyers often advance aggressively framed or spurious arguments, demand exorbitant amounts of damages, and/or ramp up and draw out legal proceedings so as to force defendants to spend significant amounts of time and money to defend their case.”

Amendment D (to the draft resolution)

In paragraph 6, after the third sentence, insert the following sentence:

“The partner organisations to the Council of Europe Platform to promote the protection of journalism and safety of journalists have regularly highlighted SLAPPs in their annual reports.”

Amendment E (to the draft resolution)

At the end of paragraph 11, add the following words:

“, while ensuring that measures to address SLAPPs remain proportionate in the context of other rights protected under the European Convention on Human Rights (ETS No. 5), and in particular the right to a fair trial (Article 6) and the right to respect for private and family life (Article 8).”

Amendment F (to the draft resolution)

In paragraph 12.1, replace the words “manifestly unfounded or abusive litigation” with the following words:

“a claim that is unfounded, abusive or would otherwise have a disproportionate impact”

Amendment G (to the draft resolution)

After paragraph 12.1, insert the following paragraph:

“effective case management, and to secure procedural expediency, in order to avoid or minimise the length and cost of proceedings;”

Amendment H (to the draft resolution)

After paragraph 12.5, insert the following paragraph:

“the protection of journalists’ sources during the litigation, particularly from disclosure;”

Amendment I (to the draft resolution)

After paragraph 12.6, insert the following paragraph:

“a maximum limit on the damages and legal defence costs that may be imposed on the defendant;”

Amendment J (to the draft resolution)

After paragraph 12.7, insert the following paragraph:

“access to early warning mechanisms for SLAPP targets in cases where their physical safety is threatened, and, in exceptional cases, to processes for voluntary evacuation and/or State protection;”

C Explanatory memorandum by Mr Davor Ivo Stier, rapporteur for opinion

1 Introduction

1. I would like to congratulate Mr Schennach for his report, which provides an excellent analysis of the prevalence of SLAPPs across Europe, their chilling effect on public discourse, and the measures which can be taken to address this problem. I am particularly grateful for his thorough analysis of the work of a wide variety of actors who are engaging on this issue, including national governments, the Council of Europe Commissioner for Human Rights, NGOs, and journalists’ associations. Given the lack of comprehensive anti-SLAPP legislation in European countries, it is also highly welcome that the report examines the laws which have been put in place beyond Europe’s borders, in Canada and the United States of America (at State-level).
2. I would like to propose some amendments to the draft resolution with a view to strengthening it. There are three main types of proposed amendments: clarifications of the definition of SLAPPs; further description of the legal context of SLAPPs; and proposals for additional anti-SLAPP measures. In regard to additional anti-SLAPP measures, almost all of the proposals are drawn from the draft Recommendation of the Committee of Ministers to member States on countering the use of SLAPPs, as prepared by the Committee of Experts on Strategic Lawsuits against Public Participation of the Steering Committee on Media and Information Society, and published for public consultation in June 2023 (“the draft MSI-SLP recommendation”).Note It is of course not possible for all of anti-SLAPP measures proposed in the draft MSI-SLP recommendation to be included in the draft Assembly resolution, as the former document is by its nature more extensive. Nevertheless, in my view there are some important measures that are in the draft MSI-SLP recommendation which could be included in the Assembly’s draft Resolution.

2 Explanatory notes

2.1 Amendment A (to the draft resolution)

This amendment aims to highlight the threat to journalistic sources as an additional negative impact of SLAPPs. Civil society actors working on SLAPPs have noted that these are used to threaten the protection of journalistic sources, as a way to prevent the dissemination of information to the public.Note A measure to address this issue is proposed in Amendment H.

2.2 Amendment B (to the draft resolution)

This amendment aims to make the definition of SLAPPs as succinct and clear as possible. The current version of paragraph 3 is worded in quite a complex way, so it is proposed to simplify it to make the description of SLAPPs as accessible as possible.

2.3 Amendment C (to the draft resolution)

The amendment is proposed to avoid the suggestion that SLAPP cases are always unmeritorious.

Paragraph 4 of the draft resolution sets out a list of characteristics which are said to be typical of SLAPPs. Although the paragraph explicitly states that these characteristics are not necessarily all present in a SLAPP case, the current version (particularly the phrase “Despite the weakness of their legal arguments”) implies too strongly that a case must be unmeritorious in order to qualify as a SLAPP.

SLAPPs are often brought on abusive and legally questionable grounds. However, a legal claim which is partly or wholly upheld by the courts – and therefore “meritorious” – could still be considered a SLAPP. This could be because: (i) the legal system or laws in the relevant jurisdiction facilitate SLAPPS (for example because defamation laws are not consistent with the case law of the European Court of Human Rights); (ii) there is a lack of judicial independence which has facilitated a successful claim; and/or (iii) the claim is genuinely meritorious, but it is pursued in an abusive way in order to prevent future public participation (for example by being made to be deliberately lengthy, incurring enormous legal costs, and/or demanding unreasonable compensation).

It is therefore important to avoid implying that SLAPP cases are always without merit, as it may unjustly allow the perpetrators of SLAPP cases to avoid being labelled with the term if they are successful in court. Paragraph 12 of Mr Schennach’s explanatory memorandum indicates that he is in full agreement that a case can still be a SLAPP, even if it is successful in the courts.

2.4 Amendment D (to the draft resolution)

This amendment would include reference to the important work of the Council of Europe’s Platform to promote the protection of journalism and safety of journalists, as additional evidence of the urgent need for anti-SLAPP reforms.

2.5 Amendment E (to the draft resolution)

This amendment aims to put anti-SLAPP measures in their full legal context, to clarify that the much-needed reforms to address SLAPPs do not disproportionately impact the protection of other rights.

In order to protect the right to freedom of expression under Article 10 of the European Convention on Human Rights, it is essential that a robust set of anti-SLAPP measures are put in place. Meanwhile, it is also important to recall that the protection of the right to freedom of expression must be carried out whilst maintaining and/or balancing the protection of other Convention rights. In particular, under the case law of the European Court of Human Rights, a fair balance must be struck between the right to freedom of expression on the one hand and the right to the protection of reputation on the other (as part of the right to respect for private life under Article 8). The right to a fair trial (under Article 6) must also be protected.

The prevalence of SLAPP cases shows that the existing legal frameworks for balancing these rights are prone to being manipulated by nefarious actors, such that the protection of the right to reputation is used as a weapon to unjustifiably stifle the right to freedom of expression. This makes robust anti-SLAPP measures necessary to ensure protection of the right to freedom of expression. However, it does not mean that the right to protection of reputation should be forgotten, or that there is no longer a need to balance it with the right to freedom of expression. The same applies for the continued need to uphold the right to a fair trial. Thus, it is proposed that these rights are explicitly recognised in the text.

2.6 Amendment F (to the draft resolution)

This amendment is intended to encourage national authorities to sufficiently empower national courts, so that they are able to dismiss SLAPP cases at an early stage. The current wording encourages national authorities to empower courts to dismiss SLAPP litigation at an early stage that is “manifestly unfounded or abusive”. However, the draft MSI-SLP recommendation states that courts should be empowered to dismiss claims at an early stage when they are “unfounded, abusive or [when they] would otherwise have a disproportionate impact”. The amendment would adopt the wording used in the draft MSI-SLP recommendation, which is broader than the current version and would be more effective in combating SLAPPs.

2.7 Amendment G (to the draft resolution)

This amendment proposes that national authorities provide for effective case management and procedural expediency in SLAPP case. This straightforward measure would assist in avoiding lengthy and onerous proceedings, which are so costly to defendants in SLAPP cases. The proposal is included in the draft MSI-SLP recommendation and is not otherwise included in the draft resolution.Note

2.8 Amendment H (to the draft resolution)

This amendment proposes a measure to address the issue highlighted in amendment A.

2.9 Amendment I (to the draft resolution)

This amendment proposes that national authorities establish a maximum limit on the damages and legal defence expenses of defendants in SLAPP cases. This proposal is contained in the draft MSI-SLP recommendationNote and is not otherwise included in the draft resolution.

2.10 Amendment J (to the draft resolution)

This amendment proposes that SLAPP targets have access to early warning mechanisms in cases where their physical safety is threatened, and, in exceptional cases, to processes for voluntary evacuation and/or State protection. These proposals are contained in the draft MSI-SLP recommendationNote and are not otherwise included in the draft resolution.