Democracy & Justice

Anatomy of a Frivolous Lawsuit: Litigant, Target, Issue and Outcome

Baseless libel lawsuits are used by powerful actors to silence their critics. Whether or not they win the case is less important: exorbitant legal fees and psychological trauma does enough damage. But who uses this tactic, who do they target, and why?

by Eleanor Brooks

European SLAPPs have certain identifying characteristics. They involve a power imbalance, as a powerful (and usually wealthier) person files a complaint against an individual they are seeking to silence. They claim to have a legal basis, and typically take the form a civil case (and on rare occasions, a criminal case) with exorbitant legal fees the defendant would struggle to pay. The disingenuous lawsuits, concerned not with finding the truth but rather suppressing it by silencing outspoken persons and individuals, result in a chilling effect, deterring the defendant and others from expressing their views due to the risk of a vexatious suit, and the financial and psychological toll it brings. Due to the Brussels 1a Regulation, in the European Union libel proceedings can be initiated in the jurisdiction where the harm has occurred or may occur and is not restricted to the jurisdiction where the defendant resides. Therefore, European cases can have a cross-border capacity.

What is the legal basis of a libel lawsuit?

Overwhelmingly, the most common legal basis for launching a baseless libel suit, both civil and criminal, is on the grounds of defamation, followed by insult or denigration. However, recently there has been a growing number of cases taken on the grounds of breach of privacy and data provisions, relying on the EU General Data Protection Regulation (GDPR).

Defamation

Although defamation law differs between jurisdictions, defamation is generally defined as the oral or written communication of a false statement about another that unjustly causes harm or detriment to their reputation.

The design of civil defamation law is biased towards the claimant, aka the person brining the case about who the defamatory statement is made, and the burden of proof is usually on the defendant, the person who made the statement, to provide evidence of its accuracy. Additionally, the claimant has at their disposal numerous procedural techniques to lengthen the proceedings which causes the defendant to incur exorbitant legal fees and increasing their stress.

This legislative basis creates the perfect storm for civil defamation to be abused by powerful actors who want to suppress critical stories or abuses of power. Crucially in a vexatious libel case, it is the legal process which harms the target more than the outcome of the case, which is why it has proved so effective for those who are willing to misuse it.

This weaponizing of libel lawsuits is threatening free speech in European countries, including those with strong democracies and adherence to the rule of law. Tools such as pre-trial hearings or early dismissals would allow for unfounded lawsuits without a genuine grievance to be identified and filtered out at an early stage, however these are sorely lacking across Europe.

Despite a strong and free media landscape, there is a strong trend of baseless lawsuits in Ireland, and in the latest report by The Coalition against SLAPPS in Europe (CASE), ‘Shutting Out Criticism: How SLAPPS Threaten European Democracy’ it ranked as the 8th country with the highest number of SLAPP cases and 4th for number of cases per capita. This shows that a strong media environment and a robust rule of law on their own are not enough to prevent baseless cases, and that a vulnerable system or legal loopholes will be exploited.

In countries where the rule of law is wavering, the misuse of libel law is even more vicious. In Poland, the independent daily newspaper Gazeta Wzborcza (GW) was subject to 75 lawsuits brought over an eleven-year period, most of which were civil defamation cases. The perpetrators of the cases identified individual journalists, as well as the newspapers themselves, as defendants in the case in the knowledge they lack resources to defend themselves, a common intimidation strategy.

Denigration

Denigration is similar to defamation but applied to companies and is defined as “an unfair competition practice consisting of bringing public discredit of a company by disparaging its product or services”. Denigration EU competition laws are meant to protect companies against unfair competition which could arise from someone badmouthing their competitors’ products with a view to influencing the purchasing behaviour of customers. The scope of denigration is much wider than defamation, and lawsuits can be filed within five years, significantly stretchier than the 3-month time limit for defamation complaints.

A prime example is the French multinational company Bolloré Group, appointed by CASE in Europe as the winner of the ‘Litigation Addict’ award. Between 2009 and 2021 Bolloré launched lawsuits against journalists, civil society organisations and media companies, the lion’s share of which were decided in favour of the defendant. One such example is a lawsuit involving a complaint against France 2 for airing an investigatory documentary which depicted workers of a Bolloré subsidiary working in degrading conditions.

GDPR

The General Data Protection Regulation (GDPR) is giving rise to unintended consequences insofar as it is emerging as a new battleground for strategic lawsuits. Although this practice hasn’t yet taken place, by basing the lawsuit on breach of privacy (rather than a defamatory statement), it opens up the possibility for the litigant to dodge the public interest defence typically available in a libel case. To rely on this defence, it must be proven the defamatory statement was of public interest, and the defendant reasonably believed the publication of such was in the public interest.

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In Hungary, where GDPR has been described as ‘the new weapon against independent media’, the energy drink company Hell Energy Magyarország Kft has sued the weekly Hungarian liberal magazine Magyar Narancs for including the names of its owner in a published article about the company, with the same having also previously sued Forbes so that their name would be expunged from the public list of 100 wealthiest Hungarians.

Similar to libel law, the consensus among Hungarian media is that the problem doesn’t stem from the GDPR legislation, but rather its misapplication due to an over-focus on data protection to the detriment of freedom of information. Finding the balance between these competing interests is a challenge the EU will need to tackle before frivolous GDPR-based lawsuits ramp up even further.

Strategic lawsuits: the litigant

The busiest and most ardent litigants in SLAPP cases are business and businesspersons, amounting to 31.9% of all cases. Not far behind are politicians or people in public services at 23.3% and in third place are state-owned entities or the state, followed by the judiciary. If the latter categories are grouped, together the government and political actors are the most common litigants.

This data suggests that the advice of the European Court of Human Rights (ECtHR), that politicians should be more open to criticism than average citizens due to their role in public life, has fallen on deaf ears.

This practice of the government or political class suppressing free speech by enacting vexatious lawsuits is a common trend across Europe. In Croatia, high-ranking politicians, government members and public officials were identified by the Croatian Journalists’ Association as being perpetrators behind some of the 924 active lawsuits against journalists and media outlets in Croatia.Slapp 1

In 2021 in Hungary, the publisher Index Promocija d.o.o, was subject to a whopping 56 defamation suits, with nine of those directly targeting its journalists. Most of the litigants of the lawsuits served in public life, comprising politicians, public officials and former government ministers.

As mentioned above, the outlet GW in Poland is facing 75 lawsuits, many of which were initiated by government agencies, state bodies or PiS (Poland's Law & Justice party) officials. The concerted and organised efforts by PiS to silence unfavourable stories is undermining the watchdog role of independent media as well as NGOs, a core pillar of democracy. Although the cases are usually dismissed, the chilling effect they produce has had a strong impact on the media environment and has seen media freedom in decline in Poland since 2015.

A further practice that produces a chilling effect is the substantial damages that can be awarded in the case of a guilty verdict. In Ireland, where a jury decides the verdict and awards damages in libel cases, the awarding of €1.872 million in damages (later reduced to €1.25 million by the Supreme Court) has spooked the media sector. If found guilty of speaking out of turn, public commentators stand to face financial ruin, prompting the media sector to settle defamation suits out of court – rather than fight them – to avoid running the risk of footing a substantial legal and damages bill.

Strategic lawsuits: the target

Those commonly targeted by strategic are individuals and organizations who are outspoken about issues of public interest that powerful actors would rather keep out of public view. Unsurprisingly, journalists (34.2%) and media outlets (23%) top the list of SLAPP targets, however civil society organisations, activists and academics also find their work hampered by baseless lawsuits, as do whistleblowers and trade unions. Particularly concerning is the nefarious trend of targeting individuals – which amounts to more than half the cases (54.7%) reviewed by the CASE report - rather than organisations or institutions who would more easily be able to absorb the exorbitant costs.

The threat of personal financial ruin and loss of professional reputation, as well as the psychological toll that comes with it, creates a much stronger deterrence, underscoring the ruthlessness of libel litigants and imbalance of power between them and the target. CASE found that in 89.5%of cases the complainants had greater wealth or power than the targets, confirming power imbalance as a defining feature of frivolous lawsuits. Millionaire businessman and LEAVE.eu-founder and Brexit endorser Arron Banks made a deliberate choice to sue journalist Carole Cadwallar individually, rather than the better-resourced Guardian Media Group.

Slapp defendent

The high-profile assassination of journalist Daphne Caruana Galizia is a tragic example of the lengths powerful individuals are willing to go to muzzle their critics. That she was facing forty-seven (and counting) libel cases against her speaks to the orchestrated and punitive assault against journalists for exposing corruption. The weaponization of libel laws is abundantly clear in the case taken against Galizia by former Maltese minister Chris Cardona, who was both heavy handed in his efforts to stop her, going as far as obtaining an order to freeze her assets, yet clearly insincere in his claims of being defamed, evidenced by his failure to turn up to his own court hearings.

Freelancers who aren’t officially employed by a particular outlet are also particularly vulnerable. Italian freelance journalist Sara Farolfi described feeling “scared” and “alone” when she and her Cypriot journalist colleague Stelios Orphanides were sued by 2 million euro by lawyers who were mentioned in an investigatory article.

The issue: common themes litigants are trying to cover-up

A defining characteristic of a SLAPP suit is that the perpetrator is trying to silence someone who is reporting on matters of interest to the public, but which they would rather keep under wraps. The most common public issues that lead to frivolous libel disputes are government, corruption, business, environment, policy and security, and media.

Even if the alleged statement itself isn’t defamatory and their case is doomed to fail, it is the costly legal process or the threat of exorbitant damages that delivers the fatal blow to public participants. Moreover, when vexatious lawsuits become habitual, the threat of a litigation creates a climate of fear and can lead outspoken critics to self-censor.

In Croatia, Friends of the Earth put up a billboard criticizing the construction of a luxury golf course. Elitech, the company who were seeking to build the golf course, responded by targeting FoE with a civil defamation case, as well as a criminal defamation case against the FoE president and vice-presidents. The move was intended to intimidate the citizens of Dubrovnik who had launched a wider campaign protesting the golf course. This illuminates the ripple effect of unwarranted libel suits, an impact well-understand by litigious public actors.

The outcome of frivolous libel lawsuits

In majority of SLAPP legal cases in the ten European countries identified by CASE as having the highest number of cases between 2010 to 2021, the case does not result in a guilty verdict. More often than not, the cases are won by the defendant, settled, or the complaint is withdrawn. However, this doesn’t reduce their sting, because it still allows the litigant to achieve their aim of draining the financial resources of the defendant and inflicting a psychological blow that would deter even the hardiest watchdogs. This produces a chilling effect whose impact is widely felt, and results in a wariness when reporting on matters of public interest.

Slapps outcome

The work of the media and civil society organisations is critical to a healthy democracy, and ensures that politicians, public servants, and powerful business people are held accountable for acting outside the law. The EU has published a welcome draft directive aimed at tackling cross-border SLAPPs in Europe. Genuine engagement from EU member states is needed to agree on an ambitious EU anti-SLAPP law and stop frivolous lawsuits once and for all.

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