Countering strategic lawsuits against public participation (SLAPPs): an imperative for a democratic society
- Author(s):
- Parliamentary Assembly
- Origin
- Assembly
debate on 25 January 2024 (6th sitting) (see Doc. 15869, report of the Committee on Culture, Science, Education
and Media, rapporteur: Mr Stefan Schennach; and Doc. 15879, opinion of the Committee on Legal Affairs and Human
Rights, rapporteur: Mr Davor Ivo Stier). Text
adopted by the Assembly on 25 January 2024 (6th sitting).See
also Recommendation 2267
(2024).
1. In recent years, there has been
a steady increase in the number of strategic lawsuits against public participation
(SLAPPs). This term refers to abusive litigation and legal tactics
designed to prevent, hinder or sanction public participation, which
is the dissemination of information on sensitive issues and contributions
to public debate on “matters of public interest”, including a wide
range of journalism, advocacy, communication and speech. In this
respect, 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, must be
considered of “public interest”.
2. The Platform to promote the protection of journalism and the
safety of journalists of the Council of Europe describes SLAPPs
as a form of “harassment and intimidation of journalists” or “acts
having a chilling effect on media freedom”, depending on the source
of the threat and the legal approach taken by the claimant. But
while this worrying phenomenon seriously undermines media freedom,
journalists are not the only victims, as such lawsuits may also
target, for example, activists, whistle-blowers, human rights or
environmental groups, trade unions and any other individual or entity
raising issues of public interest. The disclosure process in SLAPP cases
can also threaten the protection of journalists’ sources.
3. SLAPPs systematically feature two interconnected traits: they
consist of legal actions that are initiated, pursued or threatened,
to intimidate, harass or silence their target; and 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.
4. There are other typical characteristics of SLAPPs, which,
however, are not necessarily all simultaneously present in each
case. Claimants are usually in a position of (economic and often
political) power and have considerably more resources than the defendants
they seek to intimidate and silence (journalists, media or activists).
The claimants or their lawyers often advance aggressively framed
or spurious arguments. Despite the weakness of their legal arguments,
the claimants demand exorbitant amounts of damages and ramp up and
draw out legal proceedings to force defendants to spend significant
amounts of time and money defending their case. Sometimes, many
co-ordinated legal actions related to the same event, and which
can also have a cross-border element, are initiated by the claimants
or their associated parties. The claimants may also orchestrate
derogatory public relations campaigns against the defendants to
humiliate and delegitimise them. This is largely a matter of threats
and the desire to intimidate and bully them into self-censorship,
not so much to avert the risk of conviction, but to avoid having
to make considerable sacrifices for justice to be served.
5. SLAPPs may thus be regarded as a form of “lawfare”, a way
of manipulating the judicial system and diverting it from 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. They prosper in jurisdictions which lack robust
procedural guarantees to counter abusive lawsuits.
6. National authorities and international organisations have
noted that measures are needed to combat this phenomenon. In its
January 2020 report entitled “Threats to media freedom and journalists’
security in Europe”, the Parliamentary Assembly identified several
countries where this phenomenon has reached worrying proportions.
In the October 2020 Human Rights Comment, the Commissioner for Human
Rights of the Council of Europe called on member States to tackle
the problem. 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. The Committee
of Ministers of the Council of Europe is also in the process of
adopting a recommendation on the issue.
7. Moreover, the European Union institutions are drawing up a
directive to protect victims of SLAPPs or abusive court proceedings
with cross-border implications, and anti-SLAPP laws have recently
been adopted or are being drawn up in some Council of Europe member
States.
8. The Assembly recalls that under Article 10 of the European
Convention on Human Rights (ETS No. 5), member States not only must
refrain from interfering with the right to freedom of expression,
but they also have a positive obligation to ensure a safe and favourable
environment for participation in public debate by everyone, without
fear, even when the opinions expressed run counter to those defended
by official authorities or a significant part of the public.
9. The Assembly also refers to Recommendation CM/Rec(2016)4 of
the Committee of Ministers to member States on the protection of
journalism and safety of journalists and other media actors, whereby
“[m]ember States must exercise vigilance to ensure that legislation
and sanctions are not applied in a discriminatory or arbitrary fashion
against journalists and other media actors. They should also take
the necessary legislative and/or other measures to prevent the frivolous,
vexatious or malicious use of the law and legal process to intimidate
and silence journalists and other media actors.”
10. Similarly, Recommendation CM/Rec(2018)2 of the Committee of
Ministers to member States on the roles and responsibilities of
internet intermediaries calls on member States to consider adopting
“appropriate legislation to prevent strategic lawsuits against public
participation (SLAPP) or abusive and vexatious litigation against
users, content providers and intermediaries which is intended to
curtail the right to freedom of expression”.
11. The Assembly considers that there is now an urgent need for
all Council of Europe member States to act in a co-ordinated manner
to successfully combat the phenomenon of SLAPPs and calls on them
to strengthen their legislation to enable judges to effectively
punish the perpetrators of such abusive litigation, while ensuring
that measures to address SLAPPs remain proportionate in the context
of other rights protected under the European Convention on Human
Rights, in particular the right to a fair trial (Article 6) and
the right to respect for private and family life (Article 8).
12. To this end, where legal action is directed against a form
of expression or public participation on a matter of public interest
and has the effect of preventing, hindering or sanctioning it, national
authorities should provide for:
12.1 a
procedure for the early dismissal of a claim that is unfounded,
abusive or would otherwise have a disproportionate impact, within
a given time limit and based on specific criteria clearly defined
in national legislation, including an appeal process conducted under
an accelerated procedure;
12.2 effective case management and secure procedural expediency,
in order to avoid or minimise the length and cost of proceedings;
12.3 the burden of proof on the claimant to prove that the
lawsuit is not a SLAPP, where the court considers it established
that the case concerns a form of participation in public affairs
or expression on a matter of public interest;
12.4 the consolidation of proceedings concerning the same publication
or a substantially similar element of the same publication, to avoid
exhausting the defendant with multiple procedures – the main objective
of which is to paralyse the dissemination of information of public
interest;
12.5 a stay of proceedings and claims for compensation in the
event of the defendant’s death;
12.6 determination of the court with territorial jurisdiction
on the basis of the defendant’s domicile when the defendant is a
private individual, if this does not contravene international obligations,
or the legislation of the European Union where applicable, and in
any case, the defendant’s access to appropriate remedies before
the courts of the State where the action is brought;
12.7 the protection of journalists’ sources during the litigation,
particularly from disclosure;
12.8 a maximum limit on the financial guarantees that may be
required and imposed on the defendant, which must remain reasonable
in the light of his or her actual means, precluding in principle
the total freezing of his or her bank accounts;
12.9 a maximum limit on the damages and legal defence costs
that may be imposed on the defendant;
12.10 legal and financial assistance for the defendant, including
where the defendant is a legal entity, and psychological support
where the defendant is a natural person;
12.11 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;
12.12 the right of the defendant to be fully and promptly reimbursed
for all costs and expenses incurred in defending the case, as well
as the right to be awarded, in addition to ordinary tangible damages,
a reasonable compensation of intangible damages for the emotional
distress and punitive damages of a sufficiently substantial amount
where the abusive nature of the claimant’s action is established;
12.13 a fine or financial penalty to be paid by the claimant
and to be collected by the State, for the damage caused to the judicial
system by the bringing of abusive litigation; the amount of this
financial penalty should be determined by the court, taking due
account of the claimant’s financial situation, in order to ensure
that it has a genuine deterrent effect.
13. The Assembly notes that while SLAPPs are frequently civil
lawsuits, they can also be in the form of administrative and criminal
procedures. Therefore, it calls on member States to:
13.1 review administrative and criminal
procedures which may have a chilling effect on the freedom of expression
and public participation, in order to offset or at least reduce
such an effect and, in particular, decriminalise defamation, as
criminal prosecution on this basis constitutes the main threat for
people reporting on matters of public interest;
13.2 encourage administrative courts, public prosecutors and
criminal jurisdictions to make use of the procedural powers they
have to reduce the impact on public participation of administrative
and criminal lawsuits, namely fast-tracking criminal and administrative
procedures which may hinder public participation, managing them
to avoid useless delays and closing them as rapidly as possible;
13.3 provide for rapid and full compensation of the defendant’s
costs and damages (including non-pecuniary ones), also in the framework
of criminal procedures or administrative procedures which are eventually
dismissed;
13.4 provide that the defendant is eligible for (financial
and other) support mechanisms, also in cases of criminal or administrative
procedures, when public participation is at stake.
14. The Assembly considers that members of the judiciary and bar
associations have a central role to play in combating SLAPPs. Accordingly,
it calls on member States to:
14.1 raise
awareness among all judicial authorities of the phenomenon of SLAPPs,
in particular by stepping up monitoring of the number and nature
of SLAPP cases brought before the courts;
14.2 include specific training in the curricula of judicial
training institutions to make judges aware of the abusive nature
of SLAPPs and the various strategies that claimants may employ,
so that they can detect and counter them;
14.3 encourage the regulatory authorities of the legal profession
to include the fight against SLAPPs explicitly in their codes of
ethics, to improve the training of their members to make them aware
of the phenomenon and to require them, on pain of disciplinary action,
to refrain from knowingly participating in the actions of clients
who are clearly seeking to abuse the legal system by bringing SLAPPs
and deliberately prolonging such proceedings.
15. The Assembly stresses that developing multilateral co-operation
at European level is key to countering SLAPPs effectively and calls
on member States to strengthen judicial co-operation with a view
to:
15.1 developing smart procedural
rules to avoid multiple SLAPPs in different States;
15.2 ensuring mutual recognition of decisions establishing
that a lawsuit was a SLAPP, also to secure the implementation of
dissuasive measures;
15.3 setting safeguards against judgments in favour of SLAPPs,
in particular those issued in jurisdictions outside Council of Europe
member States, to deny recognition and enforcement of these judgments.
16. Finally, the Assembly encourages media and watchdog organisations
to adopt measures such as establishing collective insurance mechanisms
or defence funds, the 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.
