European institutions step up pressure for anti-SLAPP measures
As awareness of the threat of SLAPP suits in the European Union grows, international institutions are beginning to respond. SLAPPs are nuisance lawsuits initiated by powerful people and institutions to exhaust and chill the speech of journalists, activists and other public watchdogs.
Those who initiate SLAPPs do not necessarily intend to gain a final judgment against those they are threatening. They know that the financial and other implications of being sued have a chilling effect in and of themselves. Essentially, SLAPPs are a kind of lawfare in which the legal system itself is instrumentalised by the wealthy against those they perceive as threats, regardless of where the public interest actually lies.
The SLAPP problem is not restricted to Europe, but the precedent of binding EU measures like the Whistleblower Directive raises the possibility that the continent’s institutions could pass legislation to defend public watchdogs against lawfare. The civil society Coalition Against SLAPPs in Europe (CASE) is calling for binding EU anti-SLAPP legislation and a Council of Europe recommendation. In the past few months, important progress has been made on both these fronts.
The European Union: Towards an anti-SLAPP Directive
In the EU institutions, Parliamentarians have signaled their support for legislative action, which it would be up to the European Commission to propose.
In November last year, MEPs passed a resolution approving a cross-committee report on the problem and urging the 27 EU member states to stand up against SLAPPs.
Tiemo Wölken MEP, who was a co-author on the report that gave rise to the vote, told Blueprint for Free Speech that, “We are only at the beginning of our work when it comes to creating anti-SLAPP legislation.
“I regret that so far no Member State has enacted targeted legislation to provide protection against SLAPPs.”
Malta MEP Roberta Metsola, who was the second co-author on the anti-SLAPP report and who was recently named President of the Parliament, said, “This cross-party, cross-committee report marks a watershed moment for journalism in the fight against abusive lawsuits. There is no place for abuse of our justice systems.
“We are seeing individual journalists being faced with a multitude of lawsuits filed against them in foreign jurisdictions with the aim of financially and emotionally draining them.
“These lawsuits do not necessarily seek to obtain a favourable outcome as they seek to intimidate journalists into self-censorship. The aim is to silence.”
This month the Coalition Against SLAPPS in Europe (CASE) presented European Commission Vice-President Věra Jourova with a petition with more than 200,000 signatures calling for an anti SLAPP Directive. Over 170 civil society groups – including Blueprint for Free Speech – also lent their names in support.
The petition handover came shortly after the conclusion of a public consultation on potential anti-SLAPP measures from the European Commission, which could lead to binding legislation.
Věra Jourova has previously signalled her support for anti-SLAPP measures and proposals from the European Commission are expected this year.
Other voices - anti-SLAPP initiatives from Council of Europe, the OSCE and beyond
European and international organisations with a human rights remit have also been looking at the issue of SLAPPs. Both the Council of Europe and the Organisation for Security and Cooperation in Europe have a membership that is wider than the 27 states that are members of the European Union.
The European Court of Human Rights, which is part of the Council of Europe, has made a number of important rulings defending freedom of expression that are binding on its members. But the COE Council of Ministers can also issue recommendations, that are influential but not binding.
CASE is calling for just such a recommendation on the issue of SLAPPs and the institution has started the process of meeting this call. An expert committee has been convened to look at the issue and will meet for the first time in early April.
Professor Dirk Voorhoof, from the Human Rights Centre of Ghent University, is one of those who has urged the COE to take action against SLAPPs. He told Blueprint that “a recommendation can be an important tool to stimulate the member states to implement the principles into their national law,” and that, “Probably the most important impact is that these initiatives at the level of the EU and the Council of Europe contribute to create more awareness on the phenomenon of SLAPP.”
He said that would “help the national legislators, but also the judiciary and the professional organizations of lawyers to take action against SLAPPs in one or another way” to deter them.
A Council of Europe recommendation is not expected before 2023.
The Organization for Security and Co-Operation in Europe (OSCE) has also warned against the threat of SLAPPs in its role monitoring freedom of the press across 57 participating states in Europe, Central Asia and North America.
The OSCE’s Representative on Freedom of the Media, Teresa Ribeiro issued a special report on legal harrassment and abuse of the legal system against the media in November 2021.
The report stated that “Legal harassment can pose a serious threat to the safety of media and the economic basis of media workers and outlets and … has a strong chilling effect on media pluralism, undermining journalistic freedom in the OSCE region.
“The use of legal instruments and procedures to intimidate, hinder and stifle journalistic work is in stark contradiction to the safety of media workers as established in various OSCE principles on freedom of expression and freedom of the media.”
The report cites SLAPPs, defamation suits and the ability to “abuse elements of public law procedures” as one element of these threats. It also criticises legal threats to journalists that typically emanate from states, noting the tendency of authorities to use “extremism” and terrorism-related charges against journalists and other media workers.
Among the report’s eleven recommendations are for legal safeguards giving journalists the right to protect whistleblowers and other sources from identification.
In a separate development, US AID chief Samantha Power, herself a former journalist, announced in late 2021 that the United States will offer funding for foreign journalists being targeted by SLAPPs, by setting up a Global Defamation Defense Fund” to counter the "crude but effective tactic" increasingly used to silence journalists.
"We will offer the coverage to survive defamation claims or deter autocrats and oligarchs from trying to sue them out of business in the first place," she said. News reports noted that such assistance might not be made available to journalists in countries the US regards as allies.
Mapping the SLAPP problem
Collecting data on SLAPPs is key to understanding the extent of the problem. Notwithstanding that the nature of SLAPPs means that those on the receiving ends of these threats have strong incentives to stay quiet about them, CASE has analysed 539 SLAPP cases filed between 2010 and 2021.
Among the preliminary findings of this work are that the countries with the highest number of recorded SLAPP cases are Malta, Slovenia, Croatia and Ireland. The number of filed cases has been increasing in Croatia, Italy and Poland.
European SLAPPs are most often framed as defamation suits, but the CASE analysis shows that other laws are vulnerable to abuse, including data protection and intellectual property laws. Journalists and media organisations are targeted by more than half the cases recorded, but activists and NGOs focusing on crime, corruption and the environment are also frequent targets.
On an individual level, the impact of being SLAPPed can be enormous.
Murdered Maltese investigative report Daphne Caruana Galizia, was targeted with an enormous number of SLAPPs brought to stop her investigating corruption at the highest levels of government. Maltese law meant that, in the wake of Daphne’s murder, the burden of these suits was passed down to her family.
"We were left with around 40 to 50 libel cases which we inherited, and it was only thanks to the support from NGOs that we could continue fighting these cases. We would have effectively gone bankrupt and been unable to continue investigating the murder itself," her son Matthew, an investigative journalist, told The Times of Malta.
Demands for damages can cripple independent media organisations regardless of the merits of a case. In October 2021, the Greek independent media outlet Alterthess and its journalist Stavroula Poulimeni were hit with a SLAPP by Efstathios Lialios, an executive of mining company Hellas Gold, who had been convicted of environmental crimes, specifically the systematic pollution of local waterways.
The suit demanded 100,000 euros in damages, complaining that the use of his name in a story about his conviction constituted the unlawful processing of “sensitive personal data.”
Explaining why European anti-SLAPP action is necessary, Tiemo Wölken MEP said “We cannot stand by and watch as the rule of law is increasingly threatened, and the freedoms of expression, information, and association are undermined. It is our duty to protect journalists, NGOs and civil society organizations reporting on matters of public interest.”
It is now up to the European Commission to decide how to respond to calls from institutions across Europe for legislation other members to stop lawfare hindering accountability and the rule of law across the continent.