The Council of Europe’s Commissioner for Human Rights Dunja Mijatović has hit out against Strategic Lawsuits against Public Participation (SLAPP) lawsuits.
A SLAPP lawsuit is when entities shop around for foreign jurisdictions to bring lawsuits against individual or media companies worth exorbitant financial damages in an attempt to silence and intimidate. The legal fees associated in fighting such a lawsuit are enough to force an individual or media company to back down.
In a comment published on the Council of Europe’s website, the Commissioner highlights that while free speech is a cherished right in Europe, “in some countries certain rich and powerful people use specious lawsuits to censor, harass and ultimately suppress critics. This is a long-standing problem but one that has been increasing in magnitude in recent months. Journalists, activists, and advocacy groups are the preferred targets of these so-called Strategic Lawsuits against Public Participation (SLAPPs).”
The Commissioner highlighted that, when journalist Daphne Caruana Galizia was murdered, “she was already facing over 40 civil and criminal defamation suits in Malta. Some of these lawsuits have continued posthumously against her family.”
Several of Malta’s media houses, including The Malta Independent, have been threatened with SLAPP lawsuits in the past.
The Commissioner said that, throughout August and September 2020, 39 defamation lawsuits were taken out against three journalists at the investigative news website Necenzurirano in Slovenia. In Italy, where defamation is still a criminal offence, “several journalists have been targeted by malicious lawsuits with the sole aim of silencing them and draining their time and financial resources. One such example is Federica Angeli, a journalist under threat who is known for her thorough investigations into the Mafia, and has had to fight over 120 lawsuits.”
She said that the annual report of the Council of Europe Platform to promote the protection of journalism and safety of journalists “highlights groundless legal actions by powerful individuals or companies that seek to intimidate journalists into abandoning their investigations. In some cases, the threat of bringing such a suit, including through letters sent by powerful law firms, was enough to bring about the desired effect of halting journalistic investigation and reporting.”
She said that SLAPPs are typically disguised as civil or criminal claims such as defamation or libel and have several common features. “First, they are purely vexatious in nature. 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. The aim of distracting or intimidating is often achieved by rendering 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. Private companies or powerful people usually target individuals, alongside the organisations they belong to or work for, as an attempt to intimidate and silence critical voices, based purely on the financial strength of the complainant.”
Existing standards applicable to SLAPPs
“The European Court of Human Rights has made it very clear: unreasonably high damages for defamation claims can have a chilling effect on freedom of expression,” she explained. “Therefore, there must be adequate domestic safeguards so as to avoid disproportionate awards being granted. The Court has also stressed that States are required to create a favourable environment for participation in public debate by all, enabling everyone to express their opinions and ideas without fear.”
She said that member states therefore have a positive obligation to secure the enjoyment of the rights enshrined in Article 10 of the Convention: “not only must they refrain from any interference with the individual’s freedom of expression, but they are also under a positive obligation to protect his or her right to freedom of expression from any infringement, including by private individuals.”
To counter SLAPPs effectively, a comprehensive response should be devised, she said
This, she said, should follow a threefold approach:
1) Preventing the filing of SLAPPs by allowing the early dismissal of such suits. “This should go hand in hand with an awareness raising exercise among judges and prosecutors, and proper implementation of the case-law of the European Court of Human Rights on defamation;”
2) Introducing measures to punish abuse, particularly by reversing the costs of proceedings
3) Minimising the consequences of SLAPPs by giving practical support to those who are sued.
“To make this happen, governments, but also journalists, human rights defenders and civil society need to act decisively.”
“It is high time to tackle a practice which puts pressure both on journalists and on civil society as a whole and dissuades them from critical reporting. This is all the more important at a time when access to information is under strain, with governments seizing emergency powers to ban assemblies, reducing the ability of NGOs and journalists to do field work and sometimes also reining in critical media.”