PATFox Project shares insights at RightsCon
PATFox RightsCon panel (clockwise from top left: Ivan Godarsky, Philipp Wissing, Nadine Dinig, Suelette Dreyfus, Anna Wojcik and Sanja Pavic)
Earlier this month, the PATFox project participated in the world's biggest digital rights conference, RightsCon. Our online panel, Building a resilient legal force across 11 countries to defend freedom of expression included PATFox partner organisations from Croatia, Germany, Poland and Slovakia.
Ivan Godarsky from PATFox's Slovak partner organisation MEMO 98, explained that while SLAPP terminology is new to the Slovak legal community, "legal actions against defenders of the public interest, mostly critical media outlets is not a new thing in Slovakia. Quite the opposite, there are several groups that would not like to be exposed to the public criticism or scrutiny."
PATFox has been valuable in spreading awareness of this concept, which applies as much to retaliatory action against groups exposing disinformation just as it does to actions against journalists. Ultimately, the Slovak justice system needs to respond to the overall impact of abusive legal actions on freedom of expression, which includes procedural issues as well as the final result.
Reaching judges in Croatia
In terms of the sheer number of active cases, Croatia has one of the worst SLAPP problems in the European Union. Sanja Pavic from Gong outlined the latest statistics. According to an annual survey conducted by the Croatian Journalists Association, in March this year there were at least 945 active lawsuits against the media. 910 of those related to civil proceedings for defamation filed against publishers, editors, and journalists. The remaining 35 cases were criminal proceedings, reported by nine separate media outlets.
Sanja noted that plaintiffs being public and political figures, such as politicians and judges, seemed to be a key characteristic of SLAPPs. 10 media outlets reported 78 active lawsuits initiated by politicians, and two media outlets were sued by two high government officials. The CJA survey also revealed that six media outlets have 24 active lawsuits initiated by judges - something that seems to be a particular problem in Croatia.
In fact, one of the most recent and high profile SLAPP cases in Croatia involves Tris portal journalist Davorka Blažević, one of the most respected and experienced Croatian journalists. She was sued by Supreme Court judge Senka Klarić Baranović for publishing information already known to the public.
Supreme Court president Radovan Dobronić is very much aware of the issue of SLAPPs. Last year, he filed a questionnaire to all judges of county courts in Croatia, asking, among other, for data on lawsuits initiated by judges against journalists in the last five years. While acknowledging that judges have a right to bring such cases, Dobronić has been critical of the high amount of damages often involved. In fact, the European Court of Human Rights found in 2018 that judges in Croatia regularly awarded each other inappropriate, extremely high amounts of compensation.
An emerging trend regarding SLAPPs in Croatia, is that eco activists who are defending the maritime domain are being sued by big investors trying to build resorts and villas on beaches, as well as privatizing beaches, even though Croatian leaw does not recognize private beaches. In one case, an investor sued a mayor of an island town. These cases will be left out of the partial anti-SLAPP protections in Croatia's forthcoming New Media Act entirely.
PATFox is playing a role in informing judges about the consequences of SLAPPs for freedom of expression. At GONG's second workshop, judges were among those that participated. Those present emphasised the importance of following the case law of the European Court of Human Rights, which many judges fail to do so.
Politicised SLAPPs in Poland
Anna Wojcik of Oko.press noted that the SLAPP situation in Poland is particularly politicised. In Western Europe, SLAPPs are primarily civil actions, those protecting personal rights and defamation actions. In Poland, of course, there is the phenomenon of individuals or organizations being sued by a stronger party, such as business. This happens especially in the case of conflicts on the line between society and business related to environmental issues, the protection of tenants' rights, or the protection of cities as sustainable spaces, rather than subject to the dictates of the construction business interests.
Furthermore, the problem of excessive use of legal instruments to make life miserable or shut the mouths of journalists has been present in Poland for many years, also before 2015. Nevertheless, private entities and, in recent years, government authorities or entities associated with them have significantly increased the scale of legal harassment of journalists. Typically, both the author and publisher of an investigative piece are sued.
It does not seem coincidental that a disproportionate number of SLAPPs are being brought by the authorities against press titles about which the leader of the ruling parties has directly spoken negatively. Organizations protecting freedom of speech have for many years urged successive Polish governments to abolish the crime of criminal defamation (article 212 of the criminal code) that makes this practice easier. International human rights monitoring organizations, such as the UN in its Universal Periodic Review, have also made similar recommendations.
Civil defamation lawsuits are also a problem. Moreover, in Poland, the freedom of private media critical of the government has also been curtailed in recent years by, among other things, withdrawing advertisements from government companies. They have also been threatened by planned new taxes or changes in media ownership regulations, especially by entities outside the European Economic Area. These changes did not go into effect thanks to mass protests by the media themselves and citizens, as well as pressure from European Union institutions and the United States, Poland's key NATO ally. On top of that, in Poland, the media regulator has ordered financial penalties against private media for, for example, covering protests.
Ambivalence in Germany
Finally, the conversation turned to Nadine Dinig, who has co-conducted PATFox training workshops in Germany. Nadine is an independent lawyer based in Frankfurt, who specialises in press and media & competition and trademark law.
Noting that, on the European level, Germany is one of the countries most sceptical of anti-SLAPP legislation, Dr Dinig characterised the attiude towards SLAPPs in Germany as "ambivalent":
"On the one hand, SLAPPs are prevalent and Journalists and Civil Society actors are more and more worried about that - those who know about it at least. There is also a national anti-SLAPP coalition with representatives from both media and activism, which has been organizing in response to this problem for more than two years now.
"Environmental activism is a particular target of SLAPPs in Germany. The environmental movements are still quite strong in Germany, and hence they are also threatened by SLAPPs."
Dr Dinig went on to outline two important examples of environmental SLAPPs in Germany - Rettet den Regenwald (Rainforest Rescue), which was faced with legal action frm an international corporation suing on behalf of a sister company for a critical report filed by the environmental NGO, and Umweltinstitut München (Environmental Institute Munich), which had a series of civil and criminal actions laumched against it by authorities in South Tyrol.
The Umweltinstitut case has become particularly important, Dr Dinig explained, because the group effectively framed its experience as a SLAPP suit in the public domain, raising the profile of abusive litigation in Germany. "They really showed how to fight back as a SLAPP victim."
Notwithstanding this case, public awareness of SLAPPs as an issue in Germany still needs to be worked on if the political attitude is to change; projects like PATFox have made a contribution to this and a National Anti-SLAPP Coalition has more research and advocacy projects in the works.