The European Commission is set to shortly unveil its proposal for EU-wide measures against SLAPPs. In a new policy paper published today, Liberties and other rights and press freedom groups which form the Coalition Against SLAPPs in Europe (CASE), explain what SLAPPs are, how big of a threat they are to watchdogs in Europe, and propose what governments and the EU should do tackle the problem.
Censorship by litigation
Citizens are supposed to be in charge of their democracies. Watchdogs like journalists, rights defenders and activist groups are key to enable citizens to get informed, shape their opinions, and keep an eye on people in power to make sure they do what is best for all of us.
As we explain here, SLAPPs (an acronym which stands for “strategic lawsuit against public participation”), are a form of abuse of law and justice that corrupt politicians and powerful businesses across Europe increasingly make use of to harass, bankrupt and intimidate journalists, activists and other watchdogs into silence. Helped by expensive and unscrupulous law firms, they sue them on grounds of meritless and abusive claims with the purpose of shutting down acts of public participation, including public interest journalism, peaceful protest or boycotts, advocacy, whistleblowing, or simply speaking out against abuse of power.
The point of these abusive legal actions is not to genuinely assert a right, but to drain the resources, damage the reputation, and destroy the personal lives of those they target. As Matthew Caruana Galizia, the son of the murdered Maltese journalist Daphne Caruana Galizia told Liberties, SLAPPs can make life "absolutely impossible". When Daphne was assassinated she had 47 libel lawsuits pending against her – many of which have been dragged on even after her death against her family.
SLAPPs’ detrimental impact is not just limited to the individual rights of those they target. SLAPPs weaken democracy and rule of law by impeding the exercise of basic rights such as free speech, protest and association, and by perverting the justice system. By distorting laws and impairing public watchdogs from doing their job, SLAPPs hinder the enforcement of the law, including EU rules. The threat they pose affects society as a whole; to avoid being targeted, others will refrain from investigating and exposing wrongdoings and from speaking out on matters of public interest. As a result, SLAPPs have a chilling effect on democratic debate.
SLAPPs are on the rise across the EU
As part of a global trend, the use of SLAPPs to intimidate and silence public watchdogs is on the rise in the EU.
An insufficient awareness of the issue has prevented a regular and comprehensive mapping of SLAPPs and their effects across the EU. Nonetheless, a rising number of SLAPP suits or threats thereof have been exposed in recent years by civil society organisations, including Liberties. To fill the information gap, between 2019 and 2021, CASE collected data from its members and from other civil society groups on apparent SLAPPs filed between 2010 and 2021. While a full report is about to be published, key findings of this mapping work, led by the Daphne Caruana Galizia Foundation, are presented in the policy paper published today.
Key preliminary findings
- 539 verified SLAPP cases across Europe, with Malta, Slovenia, Croatia and Ireland on top of the list and more than one in ten cases recorded being cross-border
- Mapping shows a sharp increase of cases filed over the past four years, in particular in Croatia, Italy and Poland
- Data point at defamation law as the most common vehicle for SLAPPs, while showing that other laws are vulnerable to abuse, including EU data protection and intellectual property rules
- More than half recorded cases targeted journalists & media outlets, followed by activists and NGOs, with watchdogs focussing on crime, environment and corruption particularly hit
- Most common SLAPP litigants are businesses and businesspersons (more than one every three cases), followed by politicians or people in the public service (almost one every four cases)
The CASE mapping above represents to date the most comprehensive effort to map out SLAPPs across Europe. However, it is important to note that any such effort is inherently limited by the chilling effect such lawsuits create, with many SLAPP victims preferring not to draw attention to their lawsuit out of fear of further retaliation or reputational damage. In addition, SLAPPs that end up in court do not reflect broader, more insidious patterns of legal intimidation, such as the use of aggressive legal threats. As worrying as it is, the information collected only represents the “tip of the iceberg”.
Ambitious responses are needed and the EU has a key role to play
Being bound to the respect and protection of human rights, democracy, and rule of law under national constitutions as well as international and regional human rights instruments (including the EU treaties), governments have a positive obligation to protect watchdogs against SLAPPs. Yet no EU country has decent rules in place to stop this abuse. Given the scale and nature of the problem, the EU has a responsibility to act and is in a key position to make sure governments across the EU take concrete measure to prevent and counter SLAPPs.
In our policy paper, we call for ambitious national and EU action to provide effective protection against the wide range of tactics used by SLAPP litigants, including:
● Procedural and other safeguards to be embedded in national procedural systems to provide defendants tools to stop such lawsuits and avoid them being dragged on for years, as well as measures to support them when facing such a threat. Safeguards should apply to cases brought against any forms of public participation (including peaceful protest, activism, and whistleblowing, as well as journalism) and cover cases filed on a domestic as well as cross-border level.
● An EU anti-SLAPP directive establishing minimum safeguards, whose scope should be as wide as possible. Should the EU legislator come to the conclusion that its legislative intervention may only be limited to SLAPP cases with cross-border implications, the proposed EU anti-SLAPP directive should build on a broad interpretation of the notion of “cross-border implication”.
● Other measures to prevent SLAPPs and support targets, to be encouraged and monitored by means of an EU recommendation, including:
○ steps to bring laws criminalising speech, such as defamation, libel and slander, in line with international human rights standards
○ reflections on how to address the problem through legal ethics and professional standards
○ awareness-raising initiatives and trainings
○ support to actors that can provide assistance to targets.
Liberties has been working with the CASE coalition to raise awareness about SLAPPs, and to support and advocate for comprehensive protective measures against this threat in Europe. Following the announcement by the European Commission of its intention to adopt an EU anti-SLAPP initiative, Liberties and its partners of CASE have been advocating, amongst other proposals for the adoption of an EU anti-SLAPP model law, which the public can support by signing an ongoing online petition. Our calls were recently supported by a resolution of the European Parliament.
The policy paper published today, also sent to the European Commission in response to their public consultation, is another step by Liberties and its CASE partners to inform the Commission’s upcoming initiative expected in the coming months.
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