Strategic lawsuits against public participation (SLAPPs) are legal actions that are taken not necessarily with the goal of winning in court, but which instead aim to intimidate, to induce fear, to tire and consume the financial and psychological resources of the target. SLAPPs are initiated by influential elites, often state actors, business entities or powerful individuals, and their targets include journalists, human rights defenders, civil society organisations, activists, academics and anyone else who expresses an opinion on a public matter that is uncomfortable for this elite. The desired outcome is to silence the speaker and have a chilling effect on other critical and dissenting voices.
A Europe-wide problem
SLAPPs are not defined aspects of law themselves. Instead, they can be characterised by the manner in which a range of laws concerning typically defamation, but also other torts, labour laws, privacy and data protection, are used by litigants to threaten parties into silence, either through the retraction of published public interest reporting (oftentimes coupled with extensive punitive threats) or the coerced commitment to not publish in the first place. A few examples may serve to demonstrate the scope of SLAPPs being used against journalists across Europe:
In Poland, since the Law and Justice (PiS) party came to power in 2015, the country’s second-largest daily newspaper Gazeta Wyborcza has received over 55 legal threats as a result of its work. The cases are brought by powerful state actors such as the Deputy Prime Minister and PiS chairman, Jarosław Kaczyński; the state television broadcaster, Telewizja Polska S.A.; and, other state-owned companies and individuals with close ties to the governing party. The claims in the cases against Gazeta Wyborcza include civil defamation and infringement of personal interests, which is also protected under the Polish Civil Code.[1]
In 2019 Inès Léraud, a French independent journalist, was sued for defamation by Christian Buson, a Breton agri-food business owner following her investigation, published as graphic novel Green seaweed – the forbidden story, into the proliferation of seaweed in Brittany. The case was dropped a few days before the start of the trial. Recently, another defamation case was brought against Léraud by the business tycoon Jean Chéritel, CEO of the Chéritel group. The trial is due to start in January 2021.[2]
In Malta, currently 25 civil defamation cases are still active against Daphne Caruana Galizia, an investigative journalist who was assassinated on 16 October 2017. At the time of her death, she was facing 47 civil and criminal libel suits filed in various jurisdictions, including Malta and the US.[3] Recently, new legal threats have also been received by the Daphne Caruana Galizia Foundation. On 20 and 26 October 2020, the Foundation received two letters from Maggesi Maggi Mazza & Partners, an international law firm representing Domenico Lagrotteria and Vincenzo Giuliano, two businessmen mentioned in articles written by Caruana Galizia, who base part of their claim to have those articles removed on the European Union (EU) General Data Protection Regulation (GDPR).[4]
In addition to civil cases, criminal defamation cases are also used as part of a wider strategy to limit public pariticipation. For example, in Slovenia three journalists from the investigative news website Necenzurirano (Uncensored) are facing a total of 39 vexatious defamation lawsuits. The criminal defamation complaints were filed throughout August and September 2020, by Rok Snežić, a tax expert and unofficial financial advisor to the Slovenian Prime Minister. The targets of the lawsuits, journalists Primož Cirman, Vesna Vukovic and Thomas Modica, currently each have 13 cases open against them. If found guilty, the journalists face fines or up to a year in prison. On 25 September, the Slovenian Association of Journalists (DNS) published a statement expressing concern about what it called the “systematic persecution” of the portal’s journalists by Snežić.[5]
A threat to the EU legal order
SLAPPs are not only a Europe-wide issue but they also represent a threat to the EU’s legal order. First, they are a threat to democracy and human rights, by impairing the right to freedom of expression of those who speak up in the public interest and through their chilling effect and impact on public interest activities more broadly. Furthermore, to the extent that they distort and abuse the system of civil law remedies, SLAPPs undermine the mutual trust between EU legal systems and as such, pose a threat to access to justice and judicial cooperation.
Additionally, because they undermine scrutiny by independent watchdogs, SLAPPs are a threat to the effective enforcement of EU law, including in connection to the internal market and the protection of the EU budget, which cannot be monitored solely by the European Commission. Lastly, SLAPPs are a threat also to the freedom of movement, as they discourage potential targets from confidently operating in jurisdictions where the risk of SLAPPs is higher.
According to a recent study commissioned by the European Commission, SLAPPs are “increasingly used across EU member states, in an environment that is getting more and more hostile towards journalists, human rights defenders and various NGOs.”[6] Moreover, no EU member state has enacted targeted rules to provide protection against SLAPPs. To address this gap in protection, a broad coalition of civil society organisations have been advocating for the EU to undertake a number of complimentary steps.[7] In particular, the EU must: reform the Brussels I (recast) and Rome II Regulations to end forum shopping and regulate applicable law in defamation cases; morally and financially support the victims of SLAPPs; and, enact an anti-SLAPP Directive.
An anti-SLAPP Directive is needed to establish harmonised EU-wide minimum standards of protection, including appropriate procedural safeguards, supportive and protective measures for targets, as well as deterrent and awareness-raising provisions. Among other things, the Directive should ensure that procedural tools exist in all EU member states to allow courts to consider a motion for dismissal as soon as possible after proceedings are initiated. If the court is satisfied that the claim arises from the defendant’s public participation on matters of public interest, moreover, the burden of proof should be reversed, leaving it to the plaintiff to demonstrate that the action has a reasonable prospect of success and that it was not initiated or maintained for an improper purpose. Further, the Directive should include provisions that ensure that SLAPP litigants who see their claim dismissed are ordered to pay costs to the defendant on a full indemnity basis. Deterrent measures may further also include the imposition of penalties and measures to ensure publicity of court decisions that expose SLAPPs.
After some initial recalcitrance, there has been a growing recognition among actors within the EU institutions that there is a need and competence for the EU to act. In response to a letter from Members of the European Parliament, Vice-President of the European Commission Vera Jourova recognised that journalists and civil society organisations “should use their expertise and time in being the needed watchdogs for our democracies, not in fighting abusive litigation.”[8] The European Commission has indicated that the European Democracy Action Plan, to be launched in December 2020, will contain some measures addressing SLAPPs and it has committed to “take action to protect journalists and civil society against strategic lawsuits against public participation” in its 2021 work programme.[9]
Beyond the EU
Several texts adopted at the Council of Europe also explicitly refer to the problem of SLAPPs and other forms of intimidating or vexatious litigation against journalists and media outlet, including the Committee of Ministers 2018 Recommendation on the roles and responsibilities of internet intermediaries and the 2012 Declaration on the desirability of international standards dealing with forum shopping in respect of defamation, to ensure freedom of expression. In October 2020, Human Rights Commissioner Dunja Mijatovic stated the need to devise a comprehensive response, comprising the prevention of SLAPPs by allowing their early dismissal, the introduction of measures to punish abuse and practical support to those who are sued.[10] She also pointed out that already, the European Court of Human Rights has stressed that States are required to create a favourable environment for participation in public debate by all, enabling everyone to express their opinions and ideas without fear.
This is particularly relevant in light of Brexit and the fact that SLAPPs have long called London their home. The Town Named Sue offers wealthy and influential claimants a number of promises: significant amounts awarded as damages, prohibitive legal costs to dissuade a full and robust defence, and the proliferation of law firms willing to ferry cases to court or issue threats of legal action against a growing number of organisations, including journalists, media outlets, scientists, academics, campaign groups and individual members of civil society.
Defamation law in England and Wales was reformed in 2013. This brought forward a number of much needed reforms including the establishment of a serious harm threshold, a public interest defence, a single publication rule and the tightening up of jurisdictional checks to ensure that “England and Wales is clearly the most appropriate place in which to bring an action in respect of the statement.”[11] However, the reform evidently did not go far enough, as England remains a legal jurisdiction commonly deployed for SLAPPs.
However flawed the current status quo, 2021 will bring a number of unknowns. While Section 9 of the Defamation Act (2013) is intended as a check on international claimants using England and Wales as a legal jurisdiction, the section explicitly excludes claimants domiciled in EU member states or contracting parties to the Lugano Convention. When the Brexit transition period ends on 31 December 2020 and in light of the state of negotiations on the future relationship between the UK and the EU at the time of writing, this could potentially open the door to English courts having to rule on the appropriateness of EU-based claimants bringing actions in the UK. This would place a great deal of importance on English courts to ensure that defamation cases heard in England are there for a legitimate reason and not for the plaintiff to try to access the benefits of the jurisdiction, namely substantial damages and high costs for defendants.
As mentioned, with the English jurisdiction come the English law professionals. A case study in the continued influence of UK law firms is Malta and the multitude of SLAPP actions and threats directed at Maltese journalists. When in 2017 Henley & Partners, Malta’s concessionaire for its citizenship by investment programme, threatened Daphne Caruana Galizia with a defamation action in English courts through the London-based law firm Mishcon de Reya, that choice of jurisdiction was not incidental.[12] On her blog, written less than six months before she was assassinated, Caruana Galizia reported on the contents of leaked emails between Henley & Partners Chairman, Christian Kalin, the then-Maltese Prime Minister and his Chief of Staff regarding this threat: “Keith Schembri and Joseph Muscat instructed Henley & Partners to go after me in the UK courts so as to intimidate me and ruin me financially.”[13] Henley & Partners threatened similar action against The Shift News through their lawyers in the USA and UK and this choice of jurisdictions was also deployed by Turab Musayev, who instructed a US-based law firm, Lambert Worldwide and a UK-based law firm, Atkins Thomson to send legal letters to Times of Malta, Malta Today, Malta Independent, Lovin Malta and The Shift News in relation to their reporting and journalistic enquiries.[14]
The time is now
At a time when media freedom and the right to information are increasingly under pressure across Europe, there is a clear and urgent need for policy and legislative intervention at the supranational and national levels that addresses strategic lawsuits against public participation. Such intervention must include financial and other support to the victims of SLAPPs and the establishment of procedural safeguards and jurisdictional rules designed to rectify the power imbalance between plaintiff and defendant that SLAPPs exploit to the detriment of public participation. Powerful elites must no longer be allowed to abuse the judicial process to silence their critics.
Nik Williams coordinates the Media Freedom Rapid Response (MFRR) at the European Centre for Press and Media Freedom (ECPMF), which monitors and responds to violations of media freedom in EU Member States and Candidate Countries. He holds an MSc in International Public Policy from University College London (UCL). Previously, Williams led Scottish PEN’s campaigning and advocacy, focusing on defamation reform, anti-SLAPP, free expression, digital rights and surveillance policy.
Laurens Hueting is Advocacy Officer for the European Centre for Press and Media Freedom (ECPMF). Previously, Hueting worked in legal and programme coordination roles for PEN International, ARTICLE 19 and the International Commission of Jurists. He holds an LLM in European law from Maastricht University and degrees in law and in history from Ghent University.
Paulina Milewska is anti-SLAPP researcher at the European Centre for Press and Media Freedom. Prior to joining ECPMF, Milewska was board member of Wysokie Obcasy foundation and deputy coordinator of the project initiated by the U.S. Embassy in Poland – American Center Warsaw.
[1] MFRR supports Gazeta Wyborcza Poland who has received over 55 threats of legal action, Media Freedom Rapid Response, https://www.mfrr.eu/poland-mfrr-supports-gazeta-wyborcza-against-slapp-actions
[2] France: journalist Ines Leraud targeted by vexatious lawsuit, Mapping Media Freedom, May 2020, https://mappingmediafreedom.ushahidi.io/posts/23335
[3] Malta: 25 active defamation cases against Daphne Caruana Galizia, Mapping Media Freedom, October 2020, https://mappingmediafreedom.ushahidi.io/posts/23543
[4] Malta: Legal threats based on GDPR issued against Daphne Caruana Galizia Foundation, Mapping Media Freedom, November 2020, https://mappingmediafreedom.ushahidi.io/posts/23595
[5] Roberta Knoll, “We will not yield to pressure”, ECPMF, November 2020, https://www.ecpmf.eu/22-slovene-editors-write-joint-public-letter/
[6] Petra Bard, Judit Bayer, Ngo Chun Luk and Lina Vosyliute, Ad-Hoc Request SLAPP in the EU Context, EU-Citizen: Academic Network on European Citizenship Rights, May 2020, https://ec.europa.eu/info/sites/info/files/ad-hoc-literature-review-analysis-key-elements-slapp_en.pdf
[7] Advocacy, Ending Gag Lawsuits in Europe – Protecting Democracy and Fundamental Rights, ECPMF, June 2020, https://www.ecpmf.eu/ending-gag-lawsuits-in-europe-protecting-democracy-and-fundamental-rights/
[8] Vera Jourova, Letter by Vera Jourova, Vice-President of the European Commission to Members of the European Parliament, 2020, https://www.rcmediafreedom.eu/content/download/6026/55176/version/1/file/Jourova+letter+on+SLAPP.pdf
[9] Secretariat-General of European Commission, 2021 Commission work programme – key documents, European Commission, October 2020, https://ec.europa.eu/info/publications/2021-commission-work-programme-key-documents_en
[10] Human Rights Comment: Time to take action against SLAPP, Commissioner for Human Rights, October 2020, https://www.coe.int/en/web/commissioner/-/time-to-take-action-against-slapps
[11] Defamation Act 2013, UK Public General Acts, https://www.legislation.gov.uk/ukpga/2013/26/section/9
[12] Henley and Partners threatens legal action against The Shift, The Shift, December 2017, https://theshiftnews.com/2017/12/24/henley-and-partners-threatens-legal-action-against-the-shift/; Juliette Garside, Murdered Maltese reporter faced threat of libel action in UK, The Guardian, June 2018, https://www.theguardian.com/world/2018/jun/01/murdered-maltese-reporter-faced-threat-of-libel-action-in-uk
[13] Daphne Caruana Galizia, Why it was in November that the Prime Minister’s chief of staff instructed Henley & Partners to threaten to ruin me financially by suing me in a London court, Running Commentary, May 2017, https://daphnecaruanagalizia.com/2017/05/november-prime-ministers-chief-staff-instructed-henley-partners-threaten-ruin-financially-suing-london-court/
[14] Henley and Partners threatens legal action against The Shift, The Shift, December 2017, https://theshiftnews.com/2017/12/24/henley-and-partners-threatens-legal-action-against-the-shift/; Malta: British/Azeri entrepreneur threatens defamation actions against five media outlets, Mapping Media Freedom, July 2020, https://mappingmediafreedom.ushahidi.io/posts/23406