Journalists, watchdogs, activists and others are under threat in the European Union. Often, threats come from authoritarian governments passing restrictive laws that affect their ability to function or receive the financial resources necessary to carry out their work. Like limiting which sources human rights organizations can receive funding from, or preventing journalists from working in the parliament. They also come from regulations that favor Big Tech and do not allow smal-l and medium-sized companies a chance. But, increasingly, these people and organizations are facing another threat: lawsuits known as SLAPPs.
These lawsuits aren’t only a threat to journalists, watchdogs, activists and anyone else they target. They also threaten the rights of everyone. That’s because SLAPPs suppress information that should be made public. This limits our right to get information and to participate in democratic debate on that information and issues related to it.
What does SLAPP stand for?
SLAPP is an acronym that stands for strategic litigation against public participation. But what is this, actually? Corporations and politicians sometimes want to hide what they're doing, because it's illegal or harming people. They don't want journalists or activists to publicise that they've been taking bribes or flushing toxic chemicals into the local water supply. So to keep things quiet they invent an excuse to take the journalist or activist to court, in the hope that they will stop digging or talking.
The acronym SLAPP was coined by professors Penelope Canan and George W. Pring of the University of Denver in the 1980s. For a more formal definition of SLAPPs, the European Center for Press and Media Freedom defines a SLAPP as “a lawsuit filed by powerful subjects (e.g. a corporation, a public official, a high profile business person) against non-government individuals or organizations who expressed a critical position on a substantive issue of some political interest or social significance.”
What are the intentions of a SLAPP suit?
Let’s start with why courts exist. They make sure that everyone, no matter how powerful they are, plays by the rules. So they're actually one way that people without power and influence can make sure they don't get squashed by those who do.In reality, court cases take a long time and cost a lot of money. And here the powerful are taking advantage of the unfortunate reality to abuse a system designed to protect ordinary people. That’s because SLAPPs are not initiated in order to win in court. The intention of SLAPPs is to force people with less power and resources, like journalists and activists, into a court case, hoping to crush them under the weight of it. It's like a burglar calling the police to arrest the owner of a house they're robbing because the noise of them screaming is causing a nuisance to the neighbours, and the police actually investigating the house owner while letting the burglar walk away.
A journalist who is investigating fraud or other misdeeds by a company could be sued to stop them from continuing to report on the story. Activists and watchdogs could be sued to stop their research and advocacy around certain issues, such as environmental degradation or corruption. The lawsuit will often make a claim of defamation or similar injury. Such a claim is typically extremely difficult to prove in court, and it’s almost never the case that the work described above would constitute such injury. But despite the firm legal footing of defendants, the cost of litigating the case and the remote chance of financial penalty are enough to get them to drop their work.
What are the actions which often result in SLAPPs?
SLAPPs are most often used as a tool to suppress information that the plaintiffs would rather not be brought to light. Whether fraud or polluting by a company or corruption by a government, the plaintiffs are attempting to keep information secret – information that the public should and has a right to know, and which could help inform their opinion of a business or their elected representatives.
Here are the kinds of rights and freedoms that corporations and politicians try to stop citizens using.
Flyers and petitions: The circulation of flyers or petitions that assert certain claims against misbehaving governments, businesses or other entities could result in a SLAPP suit. Most likely, the claim would be that the substance of what is asserted by the flyer or petition is false, and therefore unlawfully defamatory.
Journalistic investigations: Journalists reporting on certain stories, either through traditional, fact-based news pieces or opinion pieces, can face SLAPPs from those subjects about which they’re reporting. This could be a company that’s polluting or a corrupt politician, for example.
Demonstrations: Demonstrations are another action that could bring a SLAPP suit. Again, it could be the substance of the demonstration that brings a claim of injury to the reputation of the demonstration’s target. Or the suit could allege a violation of a regulation or code that was violated by the mere holding of the demonstration, although this would be easier to prove or disprove in court.
Peaceful protests: As with other forms of demonstration, peaceful protests, even when held lawfully and in accordance with all regulations, could result in a SLAPP suit. In this case, it would again most likely be the substance or message asserted by the protesters that could cause the SLAPP action.
Legal boycotts: Even legal boycotts, which are boycotts that do not violate fair-competition laws, could be the cause of a SLAPP lawsuit. Last year, two academics in the United States were sued for their role in the boycott of Israeli academic institutions as part of a larger boycott to protest Israel’s discrimination and other actions against Palestinians.
Legal claims: Asserting legal claims against powerful individuals or companies could result in a counterclaim in the form of a SLAPP. This counter-suit might claim that the plaintiffs in the original case have no right to the information, or assert a more general right-to-privacy claim.
Letters to the editor: The act of simply penning a letter to be published in a media outlet could invite a SLAPP suit, which might target the author of the piece, the outlet that published it, or both.
Comments at public hearings: If someone makes comments or criticism about, say, a politician or company during a public hearing, that remark could be enough to bring a SLAPP suit. Again, it would be the supposedly defamatory nature of the comment, and the fact that it was made in a public forum, that would most likely constitute the basis for the SLAPP suit.
Reports: When watchdog NGOs or other organizations publish a report that is critical of someone or some business and asserting wrongdoing, the target of the report could then use that report as the basis for their legal claim
What are anti-SLAPP motions?
Anti-SLAPP motions are legal mechanisms that allow defendants in SLAPPs to seek the case’s dismissal on the grounds that it is, in fact, a SLAPP suit. Many countries, like Canada and Australia, and many individual states in the United States, have set up such mechanisms in anti-SLAPP laws. Unfortunately, the European Union is lagging behind other parts of the world when it comes to addressing the issue of SLAPPs, and that’s something we at Liberties are working hard to change. We led work on model EU legislation on the basis of which we provide expertise to the EU Commission + are mobilising the EP, governments & public to make sure the EU proposes ambitious measures, including rules on anti-SLAPP motions in all EU countries.
Why are anti-SLAPP motions important?
One reason SLAPPs are so dangerous to democracy, and hence the need for anti-SLAPP motions, is that they can cause a so-called chilling effect on fundamental rights. This basically means that when someone faces a risk of getting dragged through court, it makes them less likely to publish or publicise the problem they want to talk about. Freedom of speech and the freedom of the press are two fundamental rights that are directly targeted by SLAPPs, and the use of these lawsuits chills the exercising of these rights and others, like the right to peaceful protest. This chilling effect not only threatens these rights for those targeted by SLAPPs, but also threatens the right of everyone else to access information. That’s because they prevent people from exercising their right to information and then to freely and publicly discuss and debate the information.
In order for democracy to work properly we need to know how our leaders are using their power and influence and we need to be able to have public debate on important issues. Investigations, media reports, protests, flyering are all ways that we find out what is going on and share that with other people. SLAPPs stop that from happening, so they make it impossible for citizens to have their say about what's going on and what should be happening.And because those who bring SLAPPs use their wealth and power to make their legal actions as burdensome, long and expensive as possible, it is very challenging for targets to bear the (financial, psychological, reputational) costs of it. They are therefore likely to cease their activities in order to end it, anti-SLAPP motions are needed to protect defendants from even having to consider this. By filing a motion asserting that the suit is merely brought to silence them rather than to genuinely assert a right, a judge can use an anti-SLAPP law to easily and early on dismiss such a frivolous lawsuit.