How to stop SLAPPs – the intentional silencing of critical voices

By ECPMF press/Faith Miyandazi

 

From France to Croatia, Malta to Italy, judicial harassment of journalists in the European Union is rising as more and more journalists are subjected to SLAPPs. Yes, they are called “SLAPPs”, Strategic Lawsuits Against Public Participation. Like their acronym, they are slapped onto journalists, media houses, human rights defenders and other critics, to silence them, stop investigative research or squash political dissent.

 

SLAPPs was the theme of discussions at the European Parliament in Brussels, on 12 November 2019. Members of the European Parliament, David Casa, Stelios Kouloglu and Viola von Cramon joined the European Centre for Press and Media Freedom (ECPMF) and its partner human rights and press and media freedom organisations to delve deeper into the problem in an expert talk [concept note]. The meeting concluded with the crucial call to the European Union (EU) to find ways of preventing and limiting the use of SLAPPs to harass journalists. During the expert talk, speakers shared perspectives from their organisation’s experiences in dealing with SLAPPs. In case you missed it, here is a review of the key points and conclusions:

 

Definition

Generally, a Strategic Lawsuit Against Public Participation (SLAPP), refers to a lawsuit that is filed by powerful societal figures. They could be individuals or corporations. They file these suits against persons or organisations who express a critical position on a matter of political or social significance. The lawsuit is filed with the aim and intention of shutting down and intimidating the critical voices, by maiming them economically. This makes you wonder, how can SLAPPs be differentiated from other libel suits? Here are their main characteristics:

 

The chilling effect: SLAPPs have the power of making those both directly and indirectly affected shy away from active public engagement. In his powerful account of the situation in Croatia and his personal experience as a TV journalist dealing with the chilling and frustrating effect of SLAPPs, Hvoje Zovko said: “I am a journalist, not a coward. I will continue to report the truth and I will do it all over again.” Zovko is also the president of the Association of Croatian Journalists (HND). He worked for HRT, public television, but was fired in September 2018. HRT brought three different suits against him, which he had no knowledge about. In one for example, they claimed damages of 10,800 kuna (about 1,450 euros) and in the other damages of 250,000 kuna (over 33,000 euros). A Zagreb court later dismissed all accusations against him, calling them unlawful. Recalling the cases, Zovko says, “these lawsuits were intended to destroy me.” This leads us to the next characteristic of SLAPPs.

Multiple legal proceedings that cause severe financial damage: SLAPPs have neither a minimum nor maximum, as many can be brought against a single party. For example, presently in Croatia, there are over 1,163 ongoing lawsuits against journalists. At the time of her death on 16. October 2017, there were forty-seven cases against Maltese investigative journalist Daphne Caruana Galizia. Nineteen of them were initiated by one person for a single blogpost. Corinne Vella, Daphne’s sister, informed the Expert Talk in her presentation that Pilates Bank, a money-laundromat that Daphne exposed, filed a suit against her for 40 million dollars. The bank never threatened her, they simply filed a suit. The same bank was closed a few months after the journalist’s death. To date, Daphne’s widower, Peter, and sons are still fighting these costly and damaging SLAPP cases in Maltese courts.  This shows the intention to financially damage a defendant, so as to silence her. Not many people can afford to challenge these costly suits. Most keep quiet and pull back their reports, and many more are scared off from publishing similar reports, for fear of being sued. Even if some of these suits have no real claim, the implication of a SLAPP looming over your head is a threat. So it results in self-censorship making journalists, editors and publishers hesitant to publish public interest stories.

 

Let’s now look at the how legal tools are used by illegal forces to ensure lawsuits are prolonged.

Credit: OBCT: https://www.rcmediafreedom.eu/Tools/Legal-Resources/SLAPPs-the-Italian-Case
Lengthy processes: In Italy, out of 9,479 suits that were brought against journalists, 6,350 were stopped by a court, and only 625 of them went on to full trials.
In Malta, those who sued Daphne simply do not appear in court, in order to prolong the hearing period and cause further financial ruin. So, what can we do about all these issues? How can we fight SLAPPs? Discussants offered some suggestions based on their experiences, current or past, of SLAPPs.

Where do we go from here?

“I’m not a journalist, not a lawyer, not a press freedom activist, but I know it’s our responsibility (as representatives of European institutions) to find solutions to regulate this situation properly,” stressed Viola von Cramon, MEP, Group of the Greens/European Free Alliance, speaking during the discussion.

 

It became apparent during the event that an EU solution to tackling SLAPPs is urgently needed if the harassment of journalists within the Union is to stop. The need to work on advocacy at EU level was identified and the meeting agreed to push it with sustained momentum.

 

In his contribution, David Casa, MEP, of the European People’s Party Group, and a Maltese citizen, insisted,

“We are not going to stop. We need to have an immediate solution to protect journalists today, not tomorrow… We cannot have another Daphne.”

 

His speech like many was emotional, as many reflected on the numerous lives of journalists the EU has lost, many who are behind bars without a fair trial, and many who are haunted by SLAPP suits, whose charges, they cannot explain, and whose monstrous sums they cannot afford in a lifetime or two. Many more have quit as the number of unemployed journalists is on the rise.

 

How to fight against SLAPPs

 

i) Solidarity – together against SLAPPs

Curbing SLAPPs is complicated. Sometimes, legislative solutions are not enough, and neither are legal defence strategies. Rather, an integrated approach is called for. “In dealing with SLAPPs, we have to recognise that an attack on one, is an attack on all,” said Charlie Holt, Greenpeace’s Legal Advisor. Greenpeace has been hit by several SLAPPs. Its work, and particularly its fundraising is suffering a great deal as it was portrayed as an extortion operation. The lawsuits brought against them asked for amounts to the tune of 300 million and 900 million. For this reason, they are working with teams at the University of Amsterdam, and in Belgrade to research the nature and scale of SLAPPs and share analyses of the findings. France is yet another country, in which freedom of the media is being sabotaged in different ways – from police brutality to numerous defamation suits against journalists and media houses. Many of these suits have been by different companies, the most notorious one being the Bolloré Group. Journalists from all corners of France have united to call out the Group, create and raise public awareness on the issue. “We won’t be silenced by Bolloré,” is one such campaign. However, campaigns alone cannot solve the issue. More robust measures are needed.

A letter with threats can be enough to silence journalists, as small media outlets cannot afford the financial risk (of a SLAPP),”

said Julie Majercek from Reporters Sans Frontier in her presentation. Nonetheless, solidarity remains one area in which journalists, media and human rights organisations can stand with each other in dealing with different challenges, even beyond SLAPPs. ECPMF’s Journalists-in-Residence Programme, is one such solidarity action, which also provides practical legal support to journalists under threat.

 

ii) Naming and Shaming

Moderating the event, Sarah Clarke, Head of Europe and Asia at Article 19, steered the discussion not only towards identifying challenges, but also to finding solutions to those challenges. “Naming and shaming,” she said, “of those firms that bring SLAPPs, is important as it ensures that their names are out there, and people know.”

The Bolloré campaign is one such move to name and shame entities that are notorious for using lawsuits to prevent coverage.

 

iii) Building a legal response mechanism: why an EU response is urgently needed

a) Harmonising the rules of jurisdiction:

As it stands now, European Union law encompassed in the Brussels I Regulation and the Rome II Regulation enables EU states to abuse defamation laws. Dr Justin Borg-Barthet based his submission to the discussion on his research on the topic, which was commissioned by ECPMF, Article 19, Committee to Protect journalists (CPJ), Reporters Without Borders (RSF), and PEN International. Borg-Barthet emphasised the need to change the rules on jurisdiction as to where one can be sued. He elaborated that defamation cases should be filed in the place where the defendant resides, unless the parties agree otherwise. If this rule is not changed, it will allow for claimants (those suing) to pursue cases in other jurisdictions. For example, this is the law that allowed Pilatus Bank, whose money-laundering activities Daphne was investigating, to sue her in the UK even though she lived in Malta.

b) Harmonising EU laws on SLAPP:

The need to harmonise EU laws on SLAPPs so as to make them predictable for the press, so that they can reasonably foresee where they will be expected to defend their stories, was also identified.

The absence of a common law on defamation creates legal uncertainty, and requires journalism on cross-border matters to apply, ‘the lowest common denominator of press freedoms,’”

said Justin Borg-Barthet.

c) Research study into the problem of SLAPPs:

Within the EU is important, and this was reiterated by most speakers. A study of national procedural and substantive laws in defamation cases is needed in order to develop a harmonised modus operandi, in the form of an EU Directive, which safeguards the basic standards of freedom of expression. This should be done with a view to discouraging vexatious litigation.

It is in this regard that ECPMF will continue to work the MEPs, universities, countries – within the EU and beyond – human rights and press and media freedom organisations to ensure SLAPPs are better understood and solutions are found that uphold freedom of expression. With this conclusion, further discussion and exploration of the SLAPP phenomenon was opened and will be explored, to not only make more and more people aware of SLAPPs, but also to find ways of preventing them and fighting against them.

 

Vote of thanks

ECPMF would like to thank all those who attended and participated at this important event. A special note of gratitude goes out to to Sarah Clarke of A19 for moderating the event, to Justin Borg-Barthet from Aberdeen University for providing the much-needed research that informed discussions. All the speakers including Gill Philips of the Guardian; Hvoje Zovko, from the Croatian Union of Journalists; Charlie Holt from Greenpeace International; Padraig Hughes of the Media Legal Defence Initiative (MLDI); Julie Majercek – Reporters Sans Frontières (RSF); Tom Gibson – Committee to Protect Journalists (CPJ); Corinne Vella – the Daphne Caruana Galicia Foundation (DCG); Paola Rosa – Osservatorio Balcani e Caucaso Transeuropa (OBCT); and the following Members of the European Parliament (MEPs) David Casa MEP (Christian Democrats), Stelios Kouloglou MEP (Confederal Group of the European United Left – Nordic Green Left) and Viola von Cramon MEP (Group of the Greens/European Free Alliance).

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