The term SLAPP – Strategic Lawsuit Against Public Participation – was coined by Professors George W. Pring and Penelope Canan in their book SLAPPs: Getting Sued for Speaking Out (1996). The term generally refers to a lawsuit filed by powerful subjects (e.g. a corporation, a public official, a high profile business person) against non-government individuals or organisations who expressed a critical position on a substantive issue of some political interest or social significance.
According to the American scholarship, SLAPP is something different than an ‘ordinary’ attack to free speech: SLAPPs aim to shut down critical speech by intimidating critics and draining their resources, undermining their active public engagement. Moreover, one core characteristic of this kind of actions is the disparity of power and resources between the plaintiff and the defendant.
Often based upon ambiguous and elastic law provisions, SLAPPs use several strategies to exhaust resources and morale, generally including exorbitant claims for damages and allegations designed to smear, harass and overwhelm activists and/or civil society organisations. As underlined by the Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association, a particular country’s environment can be more or less fertile for SLAPPs. It depends on different factors, such as how expensive legal costs are, the elasticity of laws targeting speech (especially defamation), and the existence of safeguards (e.g. anti-SLAPP statutes or cost awards against abuse of process). For instance, these three requirements are perfectly satisfied in the American context: for this reason, the free speech group Index on Censorship identified civil litigation as one of the growing threats to US press freedom.
The chilling effect
SLAPPs practices are increasing around the world and do not only consist in civil lawsuits. Instead, some strategic criminal claims can be raised in order to silence undesired voices. In Italy, for example, defamation charges have been very commonly used against critical reporters, especially when they have been covering stories about public figures or famous entrepreneurs. If a journalist is unable to mount a defence against such cases, they can result in penal sanctions or orders to compensate those allegedly harmed by the impugned statements. This is the case, for instance, of the investigative journalist Amalia De Simone that has been suffering several vexatious lawsuits over the last few years (mainly criminal defamation cases) from rich businessmen as well as from public officials, after she reported on their allegedly illegal activities. The charges that are not still pending have been dismissed by the Public Prosecutor’s Office before reaching the first instance court.
As for the case of De Simone, often SLAPPs do not lead to a final judgment against the defendant. Plaintiffs know from the beginning their charges are groundless or exaggerated. However, they also know that being sued and facing investigations and an eventual trialis both expensive and time consuming. Consequently, vexatious lawsuits can have great chilling effects, refraining the journalist, media operator or undesired speaker from exercising again her or his right to criticise or to report.
Anti-SLAPP regulations are aimed at refraining potential plaintiffs from filing vexatious lawsuits. They usually allow an early dismissal of such suits, rewarding the costs sustained by the defendant, and provide some measures to penalise abuse, such as a fine on the plaintiff. One challenge in drafting anti-SLAPP legislation is determining how to target abusive claims, without denying rights of those seeking legitimate claims.
Anti-SLAPP laws are more developed in the US, Canada and Australia– where they mainly stemmed from the environmental law context-, while in Europe SLAPPs remain largely unrecognised, with little consideration of their use and impact. According to some scholars, this difference is grounded on the different consideration of the right to freedom of expression in the countries’ constitutional systems. While freedom of speech is protected as an almost absolute right by the US First Amendment, a necessary balance between this fundamental right and other interests – such as reputation rights- is provided in the European domestic and regional systems (e.g. by Article 10 (2) of the European Convention on Human Rights).
Since February 2018, a group of European MEPs is calling on the EU Commission to promote an anti-SLAPP EU directive which would give investigative journalists and media groups the power to request to rapidly dismiss “vexatious lawsuits” and would create a fund for the financial support of media groups resisting such lawsuits. Moreover, the MEPs also proposed the creation of a new EU register that would “name and shame” firms practicing SLAPPs. One of the reasons that induced the EU MEPs to promote such regulation is the case of Daphne Caruana Galizia, the Maltese investigative journalist that was murdered in a car bomb last October. At the time of her murder, she was being sued by Pilatus Bank, a Maltese financial institution she often criticised. Following this case, last April Malta decriminalised defamation: however, anti-SLAPP amendments were not included.
Anti-SLAPP grounds in international law
The UN Committee on Economic, Social and Cultural Rights has elaborated States’ obligation to protect individuals under their jurisdiction from interference by third parties in a 2017 General Comment, imposing a positive duty on the state to create a legal framework guaranteeing the free enjoyment of human rights to its citizens. Moreover, other international provisions such as the UN Guiding Principles on Business and Human Rightsprovide the responsibility to respect human rights as a global standard of expected conduct for all business enterprises wherever they operate.
Anti-SLAPP regulations can also be grounded on international and regional principles protecting freedom of expression and of speech, such as the above mentioned First Amendment and Art. 10 ECHR, as well as under Art. 19 of the International Covenant on Civil and Political Rights.
As to the European case, there are various case law principles that can be a legal base for anti- SLAPP regulations, starting from the European Court of Human Rights (ECtHR) case Handyside v. UK (1976) stating that a democratic society should tolerate also those ideas “that offend, shock or disturb the State or any sector of the population”. Also, another key case is Steel Morris v. United Kingdom (2005), where the ECtHR found a violation of Art. 10 of the Convention: the applicants, namely two members of London Greenpeace, were asked a 40.000 euros reimbursement for damaging McDonald’s company reputation through a pamphlet titled “What’s wrong with McDonald’s?”. According to the Court, the violation stemmed from the incapacity of the state to guarantee legal aid to the activists- who were very low-income individuals against one of the richest companies in the world- and the amount of the award against them.
Nowadays, in the absence of anti-SLAPP regulations, the luckiest defendants can try to find a relief in pro-bono defences, namely through the free legal defence offered by some lawyers/law firms to those people who cannot afford a legal defence. However, anti-SLAPP regulations are a step forward for guaranteeing journalists, activists and whoever wants to contribute to the public debate not to be intimidated by eventual vexatious lawsuits.
This article appeared first in the Resource Centre, an open and ever growing platform providing access to curated contents related to media freedom and pluralism in Europe