PATFox welcomes the adoption of the Council of Europe’s Recommendation on SLAPPs

Today the Committee of Ministers finally of the Council of Europe (CoE) adopted the Recommendation CM/Rec(2024)2 on countering the use of strategic lawsuits against public participation (SLAPPs).

Despite not being legally binding on Council of Europe members, it will significantly influence norms across 46 nations. It calls on member states to devise comprehensive and effective strategies to counter those legal actions threatened, initiated, or pursued to harass or intimidate their target aiming to prevent, inhibit, restrict or penalise freedom of expression on matters of public interest and the exercise of rights associated with public participation.

In August 2023, the PATFox Consortium submitted its observations on the text of the draft Recommendation, mainly focusing on the part of the document (Section IV) that relates to Education, Training and Awareness-Raising.

We are pleased to know that the updated version of the section dedicated to “Education, training and awareness raising” now includes some of the aspects outlined in our comments.

More precisely, the Recommendation states that:

“57. Member States should encourage relevant bodies to give prominence to this recommendation – and to educational materials dealing with the issues it addresses, including gender-specific issues – in educational and training programmes. Such programmes should include tailor-made training for the judiciary, legal professionals and relevant public authorities, taking into account the established case law of the Court, the existing procedural tools, the substantive standards and the core values and deontological rules of the profession.

58. Member States should encourage, while respecting the editorial freedom of journalists and the media, awareness-raising activities for the benefit of journalists, other media actors and other public watchdogs about the issues addressed in this recommendation. Such activities should stress the importance of acting in accordance with journalistic, legal or other professional ethics as the first shield against SLAPPs. Such activities should also facilitate access to resources and mechanisms, international, regional, national and local, for the protection of all actors when they are targeted by SLAPPs.

59. Member States should develop, or facilitate the development of, wider awareness-raising strategies and measures, such as campaigns aimed at the general public that focus on the democratic and societal value of public participation and the dangers of SLAPPs and their harmful effects.”

The Recomendation also takes a broad interpretation of public interest and public participation, encompassing everyone's democratic right to take part in online and offline public discourse and affairs. Thus, it includes all public watchdogs and participants in public discourse, such as academics, human rights campaigners, and members of civil society organizations. It is not restricted to journalists and other media actors. The text includes a series of rules that are meant to be applied to administrative and criminal law settings, civil litigation, and legal intimidation strategies. It encompasses every phase of the legal process, including the initial threat of legal action, which has the potential to stifle free speech and public engagement.

It also covers all types of SLAPPS, such as those aimed at anonymous public participation, multiple and coordinated lawsuits, and cross-border and domestic lawsuits. The recommendation provides a non-exhaustive list of 10 indicators to assist in identifying SLAPPs. These indicators include the use of an imbalance of power, the claimant's arguments being partially or completely unfounded, the request for disproportionate, excessive, or unreasonable remedies, and the use of delaying tactics. In order to combat SLAPPs, the recommendation encourages states to strengthen their current legislative and policy frameworks. In particular, it calls for increased attention to structural and procedural safeguards, remedies, transparency, support for victims and targets, and the creation of programs aimed at educating, training, and raising awareness.