A muzzle for SLAPPs: How the EU intends to limit the possibilities for oligarchs to harass journalists
Commissioner Jourova announces the EU’s proposed anti-SLAPP Directive
Originally published by OKO.press
The European Commission has published a draft directive and recommendations for member states on how to hinder attacks on citizens speaking on public matters. It will not change anything in Poland just yet. But in time that may change. That is why it is worth supporting the reform
Attacks of the SLAPP type (Strategic Lawsuits Against Public Participation) - that is, legal harassment and lawsuits aimed at forcing a journalist, activist or scientist to stop dealing with a topic inconvenient for the powerful - have become monstrous in Europe.
Civil society organizations that are working on anti-SLAPP solutions have documented cases from all over Europe: Bulgaria, Croatia, Slovenia, Italy and France. From Poland - there are the examples of Gazeta Wyborcza, OKO.press and Tomasz Piątek. However, the authors of the reports indicate that this is only the tip of the iceberg, because many SLAPP cases are not registered and the public is not aware that the case is a symptom of gangrene affecting Europe.
The patron of anti-SLAPP Union law is the Maltese journalist Daphne Caruana Galizia, who was murdered in 2017. At the time of her death, she had 47 SLAPP cases in courts for describing financial embezzlement in her country. For this reason, she also died.
“We were working on this project on behalf of Daphne and I had the feeling that Daphne was working with us. I wanted the new law to be named after her. It did not happen, but I think informally you can talk about Daphne’s Law , "said the initiator of the project on the part of the European Commission, Commission Vice-President Vĕra Jourová, at a press conference in Brussels on Thursday 28 April.
Vĕra Jourová, Matthew Caruana Galizia and Flutura Kusari from the European Press and Media Freedom Center at the press conference
Next to her sat Mathew Caruana Galizia, son of the murdered, investigative journalist and head of the Daphne Caruana Galizia Foundation. It was this foundation, together with other non-governmental organizations, that pressed the European Commission and helped it develop anti-SLAPP solutions.
The "Daphne Law" is the product of an analysis of social changes in Europe: defamation laws were designed to protect people from attacks by powerful media corporations. But now the media is weak and business is getting stronger.
In addition, corporations doing business in areas like the energy or food production market, have significant cross-border interests. Therefore it is easy for them to initiate legal attacks across borders. So SLAPP defendants are not just dealing with the law of their own country.Financial costs and time spent on defense for those facing cross-border cases are even greater.
The methods of social communication are also changing:
“The reason for a SLAPP attack today may be not only the material in the media, but also a protest or a poster campaign,” said Charlie Holt from Greenpeace at the press conference.
“This is David's fight with Goliath. We have to make it a bit more fair, ”stressed Jourová.
Penalties for cross-border SLAPPs
The scope of the proposed directive is limited only to the most serious cases: when a journalist, activist, scientist - or anyone else exercising their free expression rights - is sued in a court of another country. Inside or outside the EU. In these cases the attacker is able to forum-shop - choosing the legal system in which it will be easiest to crush the victim. Defending such a case can be extremely costly and time-consuming.
The European Commission’s draft legislation contemplates that, In civil cross-border cases, there should be an assessment at an early stage whether the case should be considered a SLAPP. Where this is the case, a court could:
dismiss the case (it is the plaintiff's responsibility to prove that the allegations are well-documented and are not intended solely to harass),
require the claimant in a SLAPP case to bear all legal costs,
order compensation for a SLAPP victim (also for mental losses),
impose an additional fine for abusing the right to harass citizens,
refuse to recognize the judgment of a third country court in is a SLAPP case. This applies particularly to cases brought against Europeans in British courts, where local law and procedure have been seen as extremely favorable to SLAPPs.
The directive is intended to act as a deterrent. Once it has been adopted by the European Parliament and the Council (i.e. the Member States), it will apply to pending cases. Italso work in the event of an attack by Russian oligarchs or big business against the media, but also if a Belgian anti-vaccine activist sues a Dutch scientist in Belgium.
However, if the Belgian anti-vaccine activist chooses to pursue the Dutch scientist in a Dutch court, the draft Directive will be of no assistance.
It looks like a major flaw in the system, but Jourová explains that the last thing we might want is a separate anti-SLAPP law in each EU country. And with the current level of awareness of the problem, the adoption of a uniform European law does not seem possible.
The law will not help without active citizens
“Member States are not prepared for SLAPP-type abuses,” said Jourová.
Alongside the draft directive, the European Commission also published a Recommendation. The Commission is recommending that Member States abandon criminal defamation laws (which still exist in several EU member states) and the possibility of imprisonment for defamation. Member countries will also be required to report to the Commission on SLAPP cases from 2023.
Of course, it is difficult to imagine that our Polish government, the government of Morawiecki, Ziobro and Kaczyński, will implement these recommendations and give up Article 212 of the Criminal Code, which allows them to impose imprisonment for defamation (calls for the abolition of this provision have remained unanswered for years). It is even more difficult to imagine how our ministers could describe to the European Commission the procedure of harassing citizens by their police and prosecutor's office as well as the cases brought against journalists and activists by the TVP they subordinate to them.
But as with mandatory government reports on Poland's implementation of the UN convention, a natural response from civil society may be to submit its own reports.
At OKO.press, since 2020, as part of the TARGETING * project, we have been documenting the harassment of the authorities against activists. This is a small part of what is happening in the country, but we have already managed to show what characterizes the "Polish SLAPP" (here the entire state apparatus is used to attack - from the police to propaganda), as well as how Polish civil society defends against it - thanks to free legal assistance provided by lawyers, as well as by bonding, organizing support for those under attack, and sharing knowledge about how to behave when the state attacks you.
The Polish example may become important for Europe, because in Poland the target of attack is not selected individuals, but dozens of citizens involved in public affairs.
Jourová assumes that the most important works on the directive will be completed by the end of the year. As she says, maybe it will be easier for her, as a Czech woman, to encourage the Czech presidency to work on the project. The Czechs take over the presidency of the Union after the French - from July.
Agnieszka Jędrzejczyk
Agnieszka Jędrzejczyk is a historian by education. From 1989 to 2011, she was a parliamentary reporter and then an editor in Gazeta Wyborcza; until December 2015 she was a member of the government administration, in teams that prepared a new act on public fundraising and changed - for a short time - the rules of public consultations. Most recently, up until July 2021, she worked at the Office of the Human Rights Commissioner.