This week Unsafe for Scrutiny’s Project Director, Susan Coughtrie, spoke with Sarah Clarke, Head of Europe and Central Asia at ARTICLE 19, Flutura Kusari, Legal Advisor at the European Centre for Press and Media Freedom (ECPMF), Charlie Holt, Legal Counsel for Campaigns at Greenpeace International, Dirk Voorhoof of the Human Rights Centre at Ghent University, and Nora Wehofsits, International Advocacy Officer at the Human Rights House Foundation (HRHF). They have been spearheading initiatives, as part of a broader coalition of civil society groups, to address the issue of strategic litigation against public participation (SLAPP) across Europe.^[1]

On 26 March 2021, 106 civil society organisations, on the initiative of the Coalition Against SLAPPs in Europe (CASE), signed a public call for the Council of Europe (CoE) to introduce a recommendation to combat SLAPPs.^[2] The joint statement points to the growing body of evidence that shows a rise in the use of costly legal procedures, or the threat thereof, as a means of silencing critical expression across the continent. This latest initiative follows a similar one launched in December 2020, to push for the adoption of a European Union (EU) Directive to address SLAPP amongst its 26 member states.^[3] With the United Kingdom (UK) firmly ‘Brexited’, an EU Directive if taken forward would not have any remit in this country. The UK is however still part of the CoE, a body that it was instrumental in founding in 1949,  and with 47 member states has a much wider reach than the EU.

Given the UK’s ignoble role as the leading international source of legal threats against journalists, it gives rise to the question as to what positive part could, and should, the country play in addressing SLAPPs both at the CoE and domestically.^[4] Unlike in the EU, there has been little official recognition by authorities in the UK of the serious impact that legal threats emanating from this country have on journalists, as well as wider society, both here and abroad. For example, the first ever UK National Action Plan on the Safety of Journalists, recently published by the Government makes no mention of legal threats or SLAPP cases, focusing solely on physical violence and online harassment.^[5] This is despite several examples of legal threats coming intertwined with other types of violations against journalists, including smear campaigns, online trolling, surveillance and hacking.^[6]

SLAPP cases in Europe are being actively documented through the ECPMF’s Mapping Media Freedom tool as well as the CoE’s own ‘Platform to Promote the Protection of Journalism and Safety of Journalists’.^[7] Greenpeace EU and Index on Censorship have published reports on the rise of SLAPP in Europe and FPC’s own findings have pointed to the impact of legal threats.^[8] In FPC’s global survey of 63 investigative journalists in 41 countries, published in November 2020, 73% of all respondents experiencing threats had received communication(s) threatening legal action as a result of information they had published. Moreover, almost half of those experiencing any form of threat stated that it was legal ones that have had the most impact on their ability to continue working.^[9]

The need for a CoE Recommendation has been set out in a memorandum outlining measures to deter and remedy the use of SLAPPs, published in tandem with the joint statement. It was authored by a CoE sub-committee of the CASE coalition, who have responded to questions regarding the importance of a CoE recommendation and what role the UK could play:

Q: How does the recommendation differ from, or indeed connect with, action being taken elsewhere – e.g. the draft Anti-SLAPP Directive at the EU or initiatives at a national level?

Nora Wehofsits: “SLAPPs are a threat across Europe. So a CoE recommendation is of great importance to positively influence developments throughout CoE member states, also those that are not members of the EU. At present, no dedicated European human rights standards document on SLAPPs exists. A recommendation is the most suitable way to create this and can provide a coherent set of guidelines, also to the EU, on how to prevent SLAPPs by way of legislative action or other remedies.”

Q: Why should the UK care about this issue at the CoE?

Charlie Holt: “A combination of plaintiff-friendly libel laws and high legal costs have made the UK particularly fertile ground for legal intimidation. The UK continues to be a favourite destination for libel tourists and a breeding-ground for aggressive SLAPP-happy law firms. The fact that the country is now out of the EU – and therefore outside the jurisdiction of a potential EU anti-SLAPP directive – makes the intervention of the CoE all the more important to the UK. A CoE recommendation would set authoritative standards on what protective measures are required from the UK, and could help positively shape domestic legal reform to tackle SLAPPs in the country.”

Q: Is there the scope for the UK to play a key role, particularly given they are no longer part of the EU?

Dirk Voorhoof: “SLAPP suits can also be construed as cross-border disputes, and lead to (abusive) forum shopping. In such circumstances plaintiffs make use of applicable rules of private international law to select the jurisdiction where the likelihood of achieving the desired result is the greatest instead of the one that has the closest connection to the dispute, or instead of the one where there is less perspective that the plaintiffs’ lawsuit would be declared admissible, let it be well-founded. The UK is familiar with this phenomenon, which has been labelled as ‘libel tourism’ to the UK. The existence of uniform safeguards, applicable in all Member States of the CoE, including the UK, would reduce the attractiveness of libel tourism, apart from the specific measures that can be taken in the UK in order to reduce such claims where plaintiffs and defendants are established and have their main activities outside the UK.”

Q: What action would you like to see from the UK and its permanent representation in Strasbourg? Or members of the UK’s Delegation to the Parliamentary Assembly to the CoE (PACE),  are there concrete ways they can show their support for the Recommendation?

Flutura Kusari: “There are a number of actions PACE can take. In particular, it can adopt a resolution or a recommendation calling on CoE member states to take concrete steps against SLAPPs, and it can ask the Committee of Ministers to issue its own recommendation on this topic. We would like to see the UK delegation to PACE actively supporting these steps. We hope the permanent representations of the UK in Strasbourg will engage in all discussions about SLAPPs and will proactively support any effort to fight them.”

Q: What would the adoption of this recommendation mean for national governments, including the UK?

Sarah Clarke: “A CoE Recommendation can guide national authorities to build safeguards into the procedural framework of the state laws, so that SLAPP lawsuits are as far as possible deterred, or else can be dismissed at an early stage. Safeguards against disproportionately large damage claims and provisions for legal aid must also be introduced; these are difficult or impossible for a judge to create, and must be provided for in legislation. Even if it is not legally binding, a CoE Recommendation sends a strong persuasive message to the member states to implement the guidelines or principles of a recommendation into their domestic law and practices. Furthermore, the European Court of Human Rights (ECtHR) at several occasions has integrated principles and guidelines of COE recommendations into its jurisprudence and hence made them binding for the member states in interpreting and applying the (binding) European Convention on Human Rights. Ultimately, however, national governments must demonstrate the political will to implement these reforms in order to prevent the practice of SLAPPs.”

In a recent article for FPC, Dr Alice Donald and Professor Philip Leach argued that “the time is ripe for the UK to reset its relationship with the CoE and reclaim the moral and political leadership that it once showed.”^[10] They reference the fact that the UK was an early signatory of the European Convention on Human Rights in 1950, and it was British lawyers who, from the 1970s, pioneered litigation before the European Court of Human Rights in Strasbourg, shaping its early and most influential case law.^[11] Yet despite this, and  that the UK remains one of CoE’s five largest financial contributors, Donald and Leach state that “no mature democracy has done more to destabilise the CoE in recent years than the UK”.^[12]

On that basis, one might fear the outlook is bleak. The remaining question is whether the UK will see these calls for anti-SLAPP initiative at the CoE as an opportunity to support action in line with its stated foreign policy priority of promoting media freedom globally. Or risk being seen to fall behind its European counterparts on addressing this important topic.

^[1] The Coalition Against SLAPPs in Europe (CASE), which publicly launched on 26 March 2021, is made up of a wide variety of civil society organisations who are campaigning for anti-SLAPP initiatives to be adopted at the European Union and the CoE. CASE members are also documenting cases, with the possibility to self-report via the CASE website – www.the-case.eu.

^[2] Statement on The Need for a Council of Europe Recommendation on Combating SLAPPs, CASE, March 2021, https://www.the-case.eu/statement-on-the-need-for-a-council-of-europe-recommendation-on-combatting-slapps

^[3] PROTECTING PUBLIC WATCHDOGS ACROSS THE EU: A PROPOSAL FOR AN EU ANTI-SLAPP LAW https://dq4n3btxmr8c9.cloudfront.net/files/zkecf9/StopSLAPPs_04Dec.pdf

^[4] Unsafe for Scrutiny: Examining the pressures faced by journalists uncovering financial crime and corruption around the world , FPC, November 2020, https://fpc.org.uk/wp-content/uploads/2020/11/Unsafe-for-Scrutiny-November-2020.pdf

^[5] Department for Digital, Culture, Media & Sport and Home Office, Guidance Note: National Action Plan for the Safety of Journalists, UK Government, March 2021, https://www.gov.uk/government/publications/national-action-plan-for-the-safety-of-journalists

^[6] Susan Coughtrie, The UK as a key nexus for protecting media freedom and preventing corruption globally, FPC, December 2020, https://fpc.org.uk/the-uk-as-a-key-nexus-for-protecting-media-freedom-and-preventing-corruption-globally/

^[7]  ECPMF, Mapping Media Freedom, https://www.ecpmf.eu/monitor/mapping-media-freedom/; Council of Europe, About the Platform for the Protection of Journalism and the Safety of Journalists,  https://www.coe.int/en/web/media-freedom/the-platform#:~:text=WHY%20THE%20PLATFORM%20%3F,E%20uropean%20Convention%20on%20Human%20Rights

^[8] Greenpeace EU, Sued into Silence: How the Rich and Powerful use Legal Tactics to Shut Critics Up, July 2020, available at: https://storage.googleapis.com/planet4-eu-unit-stateless/2020/07/20200722-SLAPPs-Sued-into-Silence.pdf and  Index on Censorship, A Gathering Storm: the Laws being used to Silence the Media, available at: https://www.indexoncensorship.org/campaigns/the-laws-being-used-to-silence-media/

^[9] Unsafe for Scrutiny: Examining the pressures faced by journalists uncovering financial crime and corruption around the world , FPC, November 2020, https://fpc.org.uk/publications/unsafe-for-scrutiny/

^[10] Dr Alice Donald and Professor Philip Leach, Engaging with Europe after Brexit: Time to reset the UK’s relationship with the Council of Europe, FPC, December 2020, https://fpc.org.uk/engaging-with-europe-after-brexit-time-to-reset-the-uks-relationship-with-the-council-of-europe/

^[11] Dr Alice Donald and Professor Philip Leach, Engaging with Europe after Brexit: Time to reset the UK’s relationship with the Council of Europe, FPC, December 2020, https://fpc.org.uk/engaging-with-europe-after-brexit-time-to-reset-the-uks-relationship-with-the-council-of-europe/

^[12] Dr Alice Donald and Professor Philip Leach, Engaging with Europe after Brexit: Time to reset the UK’s relationship with the Council of Europe, FPC, December 2020, https://fpc.org.uk/engaging-with-europe-after-brexit-time-to-reset-the-uks-relationship-with-the-council-of-europe/

This piece was produced as part of the Unsafe for Scrutiny project, which is kindly funded by the Justice for Journalists Foundation.