SLAPPs: the Legal Position in Slovenia
Ljubljana attorney Jasna Zakonjšek
Originally published in Odvetnik, year XXV, no. 1–2 (109–110) – Spring 2023
Strategic lawsuits against critical individuals are nothing new. The term strategic lawsuits against public participation (abbreviated as SLAPP) was coined by two professors from the University of Denver, George Pring and Penelope Canan, already in the 1980s.[1] Even in Slovenia, such lawsuits are not a new phenomenon.
The European Union started paying special attention to them after the murder of the Maltese journalist Daphne Caruana Galizia, against whom 43 civil and 5 criminal lawsuits were filed at the time of her death.[2] The death of the journalist was apparently the trigger that forced the countries of the European Union to recognize SLAPP lawsuits as a problem
Why are strategic lawsuits against critical individuals (SLAPP) or lawsuits in bad faith deserving of special attention as well as the reaction of the EU and legislators or member states? These lawsuits (but abuse of other legal means is also possible) are directed against the very essence of democracy, that is against free and public discussion on topics of public importance. A SLAPP lawsuit is an abuse of the law, and the goal of this abuse is to limit or eliminate the right to freedom of expression. In the rest of the article, we will therefore:
remember the dimensions of the right to freedom of expression,
familiarize ourselves with what is a SLAPP lawsuit and
what kind of solutions the anti-SLAPP directive proposal offers, and
in the end, take a look at ourselves.
The right to freedom of expression
The importance of the right to freedom of expression, which is written in Article 39 of the Constitution, is recognized in the practice of the Constitutional Court of the Republic of Slovenia and the practice of the European Court of Human Rights (ECHR). Freedom of expression is given special attention as the violation of this right brings serious consequences not only for the person, who wants to inform the public about something but also for democracy. The right to freedom of expression is “in principle protected regardless of whether the statement is crude or neutral, rational or emotionally charged, mild or offensive, helpful or harmful, right or wrong”. [3] The right to freedom of expression receives such protection to ensure free discussion about topics that are legitimately in the interest of the public.
When it comes to freedom of expression and SLAPP lawsuits, special emphasis should be given not only to the active aspect of this right, which stipulates that everyone can freely spread their conscience and opinions but also to the passive aspect of the right to freedom of expression, which stipulates that everyone can freely collect and receive different perspectives and opinions. Namely, a SLAPP lawsuit does not harm only the defendant, who, due to the pending court proceedings, no longer dares to exercise their right to freedom of expression, but also harms all of those, who are, due to the silencing of a SLAPP lawsuit target, deprived of information or opinions.
Additionally, the SLAPP lawsuit also has a chilling effect on other individuals, who would otherwise choose to come forward and speak out on an issue of public importance but because they fear being subjected to a SLAPP lawsuit or lengthy court proceedings, they refrain from doing so. In the case of SLAPP lawsuits, the chilling effect manifests itself in the fear of long-lasting, emotionally, and financially exhausting litigation, which the SLAPP lawsuits victim is exposed to, even if they end up winning the case. So, when it comes to SLAPP lawsuits, the victim is never just the defendant, but also the public, which is impoverished for a diverse and meaningful public discussion on issues of public importance.
Freedom of expression naturally has its limits and is not absolute. The second paragraph of Article 10 of the European Convention on the Protection of Human Rights (ECHR) states that the exercise of freedom of expression “since carries with it duties and responsibilities, may therefore be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, fort the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary”.
What is a SLAPP?
The right to freedom of expression can therefore be limited in some cases to protect the aforementioned legitimate goals, but applicants who file strategic lawsuits against critical individuals are not trying to succeed in the procedure, rather after months of court proceedings, those, as we will see below, clearly unfounded lawsuits, end in rejection of the claim. In a SLAPP lawsuit, the applicant’s goal is not to succeed with the lawsuits, but to exhaust the defendant with a lengthy court procedure with the aim of silencing the debate on a topic of social importance. SLAPP lawsuit, therefore, amounts to an abuse of the right to judicial protection.
It is typical for SLAPP lawsuits that they are filed by those who have (financial, political, social) power against critical individuals, be it legal persons, such as media houses or non-governmental organizations, or natural persons, such as journalists, representatives of civil society, environmentalists, artists, etc. A SLAPP is therefore characterized by an imbalance of power between the applicant and the defendant.
At the same time, it is necessary to draw attention to the phenomenon of covert financing of applicants by third parties. To conceal the imbalance of power between the applicant and the defendant, a so-called straw applicant or “little man” is found and financed to initiate litigation against a person, who the real applicant wants to silence. [4] A well-known example of financing the applicant by a third party is the so-called Hulk Hogan v. Gawker case. As it turned out after the end of court proceedings, Hulk Hogan’s lawsuit, which resulted in the bankruptcy of the media outlet Gawker, was financed by a billionaire Peter Theil, who held a personal grudge against Gawker because of Gawker’s publications about him. [5]
In addition to the imbalance of power between the applicant and the defendant, the intention behind the lawsuit can be an important indicator that the lawsuit is a SLAPP . In the case of a SLAPP lawsuit, the applicant has no interest in the procedure ending quickly and in favor of their claim, but rather in it lasting as long as possible, since lengthy procedures burden the defendant financially and timewise, and, because there is always a certain degree of uncertainty about how the procedure will end, that increases the emotional burden on the defendant. The aim of such abuse of the right to judicial protection is therefore that the applicant becomes exhausted financially, emotionally, and in terms of time, to the point where they no longer have the will to publicly engage by pointing out irregularities or by criticizing the applicant’s behavior in the context of a certain topic of social importance.
In addition to silencing the defendant, SLAPP lawsuits also aim at the silencing potential other critics or so-called watchdogs who do not dare to speak up against the applicant regarding a topic of social importance, because they fear being the next victim of a SLAPP.
SLAPP can appear in a variety of forms. It can be a civil lawsuit or the initiation of criminal proceedings, even misdemeanor or administrative proceedings can be a SLAPP. Often, applicants in SLAPPs claim that they initiated the proceeding to protect their reputation or privacy. Other legal grounds can also be used for SLAPPs, for example, copyright protection, enforcement of labor law rights, protection of public order and peace, etc.
Anti-SLAPP Directive Proposal
Following the murder of the journalist Daphne Caruana Galizia, awareness grew in Europe that the problem of SLAPP actions needs to be tackled at the EU level and Member State national level, which will require legislative change as the current procedural legislation at the EU level and the legislation of its Member States does not provide sufficient tools to effectively tackle SLAPP lawsuits. On 27 April 2022, the European Commission published a proposal for a Directive of the European Parliament and of the Council on protecting persons who engage in public participation from manifestly unfounded or abusive court proceedings (“Strategic lawsuits against public participation”) (hereafter referred as the Anti-SLAPP Directive proposal). [6]
The the Anti-SLAPP Directive proposal represents a minimum level of protection that the Member States will have to transpose into their national law. The Anti-SLAPP Directive will only apply to civil matters with cross-border implications because, given the division of competences between the EU and the Member States, the EU cannot interfere with national legislations when it comes to so-called domestic disputes, i. e. disputes that do not have cross-border implications (Treaty on the Functioning of European Union, Article 81, second paragraph, point (f)). However, the fact that the Anti-SLAPP Directive proposal only applies to civil disputes with cross-border implications should not, in Professor Dr. Aleš Galič’s view, be given too much attention, since a rational domestic legislator could be expected not having two laws: one regulating cross-border SLAPP disputes and another regulating domestic SLAPP disputes. [7] We can therefore expect that once the anti-SLAPP Directive is adopted, the Slovenian Parliament will incorporate the solutions of the anti-SLAPP Directive into national law so that they apply to disputes with cross-border implications as well as to so-called domestic disputes.
The Anti-SLAPP Directive proposal makes it clear that SLAPP lawsuits are abusive legal proceedings or unfounded lawsuits whose main purpose is to prevent, restrict or punish public participation of individuals regarding matters of public interest (Articles 1 and 3 of the proposal). We can therefore identify two main elements of SLAPP lawsuits: the lack of merit and the main purpose of preventing, restricting, or punishing public participation. This purpose can appear as:
the disproportionate, excessive, or unreasonable nature of the claim or part of it;
the existence of multiple proceedings initiated by the applicant or associated parties concerning similar matters, and
intimidation, harassment, or threats by the applicant or his representatives (Article 3(3) of the proposal).
The Anti-SLAPP Directive: proposed solutions
The Anti-SLAPP Directive proposal brings several solutions out of which the most important one is the possibility of early dismissal of clearly unfounded lawsuits (Articles 9 to 13 of the proposal). According to the Anti-SLAPP Directive proposal the defendant [8] may submit a motion for early dismissal of a manifestly unfounded lawsuit. The assessment of the motion for early dismissal should take place in an expedited procedure, taking into account the circumstances of the case and the right to an effective legal remedy and a fair trial. The burden of proof that the claim is not clearly unfounded is on the claimant. A court’s decision on a motion for early dismissal of an action that is clearly unfounded will be subject to appeal.
The possibility of early dismissal is a key tool to fighting SLAPP lawsuits, as the lengthy court proceedings are most burdensome for defendants. However, even though Professor Galič recognizes the many benefits of regulating (unifying) the anti-SLAPP legislation at the EU level, he also points to the dangers. For example, the risk that the complexity of deciding on a SLAPP objection could lead to the opposite of the desired effects: more complex and costly litigation and prolonged proceedings.[9] Striking a balance between effective (rapid) protection against SLAPP lawsuits in the form of early dismissal and ensuring the right to judicial remedy will certainly be a challenging task for the court, which is why the training of judges, as already foreseen in the current COMMISSION RECOMMENDATION (EU) 2022/758 of 27 April 2022 on protecting journalists and human rights defenders who engage in public participation from manifestly unfounded or abusive court proceedings (‘Strategic lawsuits against public participation’)( hereafter referred as Recommendation) will play a major role in whether the early dismissal solution will work in practice.
The Anti-SLAPP Directive Proposal also provides for the possibility of a deposit to be paid by the claimant for legal costs or damages (Article 8). This could prevent the defendant from ending up, despite its success in the proceedings, without reimbursement of its costs and without the possibility of recovering damages from the claimant.
The proposed Anti-SLAPP Directive gives the court the possibility to award compensation to the victim of a SLAPP lawsuit for damages suffered as a result of an abused court process to prevent public participation (Article 15 of the proposal). According to Professor Dr. Aleš Galič, this includes material damage, which can take the form of payment of attorney’s fees above the attorney’s tariff, reimbursement of legal aid, reimbursement of the costs of legal opinions, etc. [10] In addition to compensation to the victim, the anti-SLAPP proposal also gives the court the possibility to order the applicant to pay a fine (Article 16 of the proposal).
Among the tools provided in the Anti-SLAPP Directive is the possibility of third parties participating in the proceedings (Article 7 of the proposal), by providing for the possibility of involvement of non-governmental organizations protecting or promoting the rights of persons involved in public participation, either to support the defendant or to provide information.
As a final tool against SLAPP proceedings, it is worth mentioning the possibility for the court to order the claimant to pay all the costs of the proceedings, including the full costs of the defendant’s legal representation, unless such costs are excessive (Article 14 of the proposal).
In addition, the proposal for a Directive also addresses the possibility of SLAPP proceedings against an EU person taking place in a third country. The danger of this situation is that the proceedings would take place in a third country where the victim of a SLAPP lawsuit would not have adequate protection in the law. In such a case, the victim of the SLAPP lawsuit could then seek compensation before a domestic court in the EU for the damages and costs incurred in connection with the proceedings in a third country, irrespective of the domicile or the placement of establishment of the claimant in proceedings the third country.
Conclusion - or what responsibility we, the attorneys, have
We, the attorneys, are the first people who should tell a client who wants to abuse the judicial process to silence their critics that we will not offer our professional assistance. That is what both the Law on Advocacy [11] and the Code of Professional Ethics [12] require of us. When we are confronted with requests from clients alleging abuse of the judicial process, we too often forget that, as an autonomous and independent institution, we are part of the judiciary. [13]
Professor Dr. Janez Kranjc spoke on the attorney’s duty to their client at the 2016 Attorney seminar. He said that a lawyer must “maintain intellectual and professional autonomy in relation to his or her client. Above all, he or she must not become a blind executor of the mandate holder’s wishes, something Americans call a “hired gun”, i.e. someone who will be used by the client to “shoot” the judge and the opposing party, etc. An attorney must always remain intellectually and professionally autonomous, which means that he or she must not only warn the client about what is right and what is wrong but also try to dissuade a client from acting recklessly or excessively.” [14]
One may, of course, ask how likely it is that an attorney will refuse to represent a client who seeks legal assistance in an abuse of judicial proceedings, knowing that they will be deprived of a client and consequentially a source of income. At this point, we are confronted with the issue of fair remuneration and financial independence of the lawyers, which, while not a guarantee of our professional and independent conduct, is an important basis.
Attorney Jasna Zakonjšek is working with the Open Institute, which is one of 11 partners in the PATFox project, which aims to design a training system for legal professionals on intimidating strategic litigation in Europe. The program is co-financed by the European Union.
References
[1] https://www.europarl.europa.eu/thinktank/en/document/EPRS_BRI(2022)733668.
[2] https://www.daphne.foundation/en/justice/vexatious-libel-cases
[3] Decision of the Constitutional Court of the Republic of Slovenia, No. U-I-226/95, paragraph 11
[4] Summarized from Galič, A.: The relationship between the anti-SLAPP directive and the Slovenian civil procedure regime, available at https://youtu. be/59qKTEYs7AM (minute 23:54).
[5] The case of Hulk Hogan v. Gawker is described in Bergeleson, Lauren: “The Need for a Federal Anti-SLAPP Law in Today’s Digital Media Climate”, Columbia Journal of Law & The Arts, 213 (2019), pp. 223.
[6] https://eur-lex.europa.eu/legal-content/SL/TXT/PDF/?uri=CELEX:52022PC0177&from=EN
[7] Summarized from Galič, A.: The relationship between the anti-SLAPP directive and the Slovenian civil procedure regime, available at https://youtu. be/59qKTEYs7AM (minute 1:12).
[8] The Anti-SLAPP Directive proposal also allows Member States to initiate such a procedure ex officio, and not only at the request of a party (Article 5(3) of the proposal).
[9] Summarized from Galič, A.: The relationship between the anti-SLAPP directive and the Slovenian civil procedure regime, available at https://youtu. be/59qKTEYs7AM (minute 4:08).
[10] Summarized from Galič, A.: The relationship between the anti-SLAPP directive and the Slovenian civil procedure regime, available at https://youtu. be/59qKTEYs7AM (minute 18:37).
[11] Law on Advocacy - ZOdv (Official Gazette of the RS, No. 18/93, 24/96 - promulgated by Decree No. US, 24/01, 111/05 - Decree-Law No. US, 54/08, 35/09, 97/14, 8/16 - Decree-Law No. US, 46/16, 36/19, 130/22), Article 11
[12] Code of the Legal Profession, Articles 41, 58/1 and 60a.
[13] Article 137(1) of the Constitution of the Republic of Slovenia.
[14] Kranjc, J.: What is ethics and who needs it?, Odvetnik, No. 4 (77) - autumn 2016, p. 19
[15] "The State still does not perceive the legal profession as part of the administration of justice, where, not without good reason, the Constitution places it. The State should have an interest in ensuring that we attorneys are well-functioning and financially independent. It is only a financially independent attorney that can turn down a client. In Slovenia, the unenviable financial situation of attorneys means that it is possible to, even with the most bizarre ideas, find one to represent you. This is not good for a systemic view of the functioning of the administration of justice."
Starman, J.: A wise attorney settles a dispute without going to court, Pravna praksa, No 30-31/2021, pp. 3.