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:

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.