The problem: gag lawsuits against public interest defenders
The EU must end gag lawsuits used to silence individuals and organisations that hold those in positions of power to account. Strategic Lawsuits Against Public Participation (SLAPPs) are lawsuits brought forward by powerful actors (e.g. companies, public officials in their private capacity, high profile persons) to harass and silence those speaking out in the public interest. Typical victims are those with a watchdog role, for instance: journalists, activists, informal associations, academics, trade unions, media organisations and civil society organisations.
Recent examples of SLAPPs include PayPal suing SumOfUs for a peaceful protest outside PayPal’s German headquarters; co-owners of Malta’s Satabank suing blogger Manuel Delia for a blog post denouncing money laundering at Satabank; and Bollore Group suing Sherpa and ReAct in France to stop them from reporting human rights abuses in Cameroon. In Italy more than 6,000 or two-thirds of defamation lawsuits filed against journalists and media outlets annually are dismissed as meritless by a judge. When Maltese journalist Daphne Caruana Galizia was brutally killed, there were 47 SLAPPs pending against her.
SLAPPs are a threat to the EU legal order, and, in particular:
A threat to democracy and fundamental rights. The EU is founded on the rule of law and respect for human rights. SLAPPs impair the right to freedom of expression, to public participation and to assembly of those who speak out in the public interest, and have a chilling effect on the exercise of these rights by the community at large.
- A threat to access to justice and judicial cooperation. Cross-border judicial cooperation relies on the principles of effective access to justice across the Union and mutual trust between legal systems. That trust must be based on the legally enforceable upholding of common values and minimum standards. To the extent that they distort and abuse the system of civil law remedies, SLAPPs undermine the mutual trust between EU legal systems: member states must be confident that rulings issued by other member states’ courts are not the result of abusive legal strategies and are adopted as the outcome of genuine proceedings.
- A threat to the enforcement of EU law, including in connection to the internal market and the protection of the EU budget. The effective enforcement of EU law, including the proper functioning of the internal market, depends on the scrutiny of the behaviour of individual entities by the EU, member states and – crucially – informed individuals. Watchdogs, be it media or civil society actors, play a key enforcement role. Therefore, the absence of a system which safeguards public scrutiny is a threat to the enforcement of EU law. The same reasoning applies to the management of EU programmes and budget, which cannot be monitored through the sole vigilance of the European Commission.
- A threat to freedom of movement. The absence of rules to protect watchdogs from SLAPP has an impact on the exercise of the Treaty’s fundamental freedoms, since it affects the ability of media, civil society organisations and information services providers to confidently operate in jurisdictions where the risk of SLAPPs is higher, and discourages people from working for organisations where they can be the target of SLAPPs.
The solution: an EU set of anti-SLAPP measures
The EU can and must end SLAPPs by adopting the following complementary measures to protect all those affected by SLAPPs:
1. An anti-SLAPP directive
An anti-SLAPP directive is needed to establish a Union-wide minimum standard of protection against SLAPPs, by introducing exemplary sanctions to be applied to claimants bringing abusive lawsuits, procedural safeguards for SLAPP victims, including special motions to contest the admissibility of certain claims and/or rules making the burden shifting to the plaintiff to demonstrate a reasonable probability of succeeding in such claims, as well as other types of preventive measures. The Whistle-Blower Directive sets an important precedent protecting those who report a breach of Union law in a work-related context. Now the EU must ensure a high standard of protection against gag lawsuits for everyone who speaks out – irrespective of the form and the context – in the public interest.
The legal basis for an anti-SLAPP directive is to be found in multiple provisions of the Treaty; for example, Article 114 TFEU on the proper functioning of the internal market, Article 81 TFEU on judicial cooperation and effective access to justice and Article 325 TFEU on combating fraud related to EU programmes and budgets.
2. The reform of Brussels I and Rome II Regulations
Brussels I Regulation (recast) contains rules which grant claimants the ability to choose where to make a claim. This must be amended to end forum shopping in defamation cases, which forces defendants to hire and pay for defence in countries whose legal systems are unknown to them and where they are not based. This is beyond the means of most and falls foul of the principles of fair trial and equality of arms.
Rome II Regulation does not regulate which national law will apply to a defamation case. This allows claimants to select the most favourable substantive law and therefore leads to a race to the bottom. Today, victims may be subject to the lowest standard of freedom of expression applicable to their case.
3. Support all victims of SLAPPs
Funds are needed to morally and financially support all victims of SLAPPs, especially with legal defence. Justice Programme funds should be used to train judges and practitioners, and a system to publicly name and shame the companies that engage in SLAPPs, for example in an EU register, should be created.
Finally, the EU must ensure that the scope of anti-SLAPP measures include everybody affected by SLAPPs, including journalists, activists, trade unionists, academics, digital security researchers, human rights defenders, media and civil society organisations, among others.