Pioneering AntiSLAPP Training for Freedom of Expression – PATFox

Originally published by aditus

We are extremely excited to start working on a transnational project which has been approved for funding by the EU Justice Programme. This project will focus on increasing the capacity of professionals that would be likely to face or defend against strategic litigation against public participation (SLAPP) suits.

SLAPPs are designed to scare defendants into silence, pre-emptively chilling future exposure of wrongdoing. PATFox will pioneer Europe’s first anti-SLAPP training, upskilling the lawyers representing journalists and human rights defenders against those litigating to shut down legitimate criticism in 11 EU member states (Spain, Germany, Malta, Bulgaria, Hungary, Croatia, Romania, Slovakia, Cyprus, Poland and Slovenia). We will draw on international expertise and in-country knowledge to develop a model curriculum in anti-SLAPP techniques and then identify and train lawyers in each country likely to face SLAPP suits.

Article 10 of the European Convention on Human Rights provides that “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers“. This obliges the States signatory to the Convention to  refrain from any interference with the individual’s freedom of expression, but it also contains contains positive obligations on States “to create a favourable environment for participation in public debate by all the persons concerned, enabling them to express their opinions and ideas without fear” (ECtHR 29 January 2015, Uzeyir Jafarov v. Azerbaijan). This provides an onus on the part of member countries to required to establish an effective mechanism for the protection of authors and journalists in order to create a favourable environment for participation and to ensure that legislation is not used to intimidate media professionals and journalists.

Why is there the need to povide this type of training?

Knowledge on defending against SLAPP suits is an as-yet entirely undeveloped field although there is a marked increase in the use of SLAPPs against rights-defending activistists and journalists in many EU countries. A recent report published by the Coalition Against SLAPPs in Europe (CASE) shows that SLAPPs are on the increase across Europe and threathened the right freedom of expression and the right to know. The report authored by the Daphne Caruana Galizia Foundation, Greenpeace and Amsterdam Law Clinics is based on a study of over 500 SLAPP cases from across 29 countries in Europe. This study found that SLAPPs are a pan-European phenomenon and that they affect multiple sectors ranging from the environment to education and anti-corruption advocacy.

It should be noted that SLAPPs are filed countries with strong democratic systems and also in those with weak institutions and rule of law concerns. Though prolific SLAPP litigants often launch cases in member states with stronger rule of law cultures.

The common factor of all SLAPP suits is that plaintiffs abuse existing laws in order to indimidate and harass those who are speaking out and participating in civic space. Many times these include journalists, activists, whistleblowers, academics and also advocacy groups. In fact, the main aim of the plaintiff in a SLAPP suit is that of indimating the target and shutting them down with the use of unlimited funds, multiple cases and a system that is not catered to identify the abuse.

The aim is not to win the case but to divert time and energy, as a tactic to stifle legitimate criticism. Litigants are usually more interested in the litigation process itself than the outcome of the case and attempt to render the legal proceedings expensive and time-consuming. Demands for damages are often exaggerated. Another common quality of a SLAPP is the power imbalance between the plaintiff and the defendant, based usually on the financial strenght of the plaintiff.

Malta was found to have the highest number of SLAPP cases per capita and in all of the 570 cases identified, Daphne Caruana Galizia was the most frequently targeted individual. At the time of her assassination she had 47 libel cases filed against her in Malta and one in Arizona. After her death, the majority of the cases were withdrawn, however 5 remain ongoing due to a legal provision which allows plaintfiss to continue a civil suit against the heirs of the defendant. It could be said that Curana Galizia’s assassination put the spot light on the issue of abusive ligitigation against those attempting to uncover corruption and expose the truth. In Malta itself, her assassination led to a reform on the laws regulating defamation and press freedom.

In a recent European Court of Human Rights (ECtHR) judgdement, OOO Memo v. Russia decided on the 15 March 2022, the Court for the first time made reference to the damaging effects of SLAPPS on the right to freedom of expression. The case concerned a civil defamation suit brought by a Russian regional state body, the Administration of the Volgograd Region, against a media company, OOO Memo. 

The ECtHR, in its judgment, took into consideration the growing awareness of the risks that court proceedings instituted with a view to limiting public participation bring for democracy. It also took into account the Human Rights Comment by the Council of Europe Commissioner for Human Rights “Time to take action against SLAPPs” of 27 October 2020.

The recent developments make it even more pressing to train legal professionals that would be involved in defending SLAPP suits, from in-house counsel for independent media, lawyers working for freedom of expression NGOs, and private practice lawyers providing pro bono services to activists and journalists.

Partners

Spanish international justice NGO Fundación Internacional Baltasar Garzón (FIBGAR) , as lead partner, will coordinate aditus and the other partner NGOs Blueprint for Free Speech, Fondatsiya Tsentar Za Razvitie Na Mediite – Media Development Center, FUGGETLEN UJSAGIROK ALAPITVANYA, Gong Udruge – Gong, Fundatia Centrul pentru Jurnalism Independent – CJI, MEMO’98, Technologiko Panepistimio Kyprou – Cyprus University of Technology, Fundacja Osrodek Kontroli Obywatelskiej  – OKO, Zavod za kulturo raznolikosti – Open. The project will be carried out over a 24-month period.

If you are interested in the project and/or wish to participate in the national training in Malta please follow our project page or email Carla on carlacamilleri@aditus.org.mt.