This article was first published as a Human Rights Comment of the Council of Europe Commissioner for Human Rights.
By Dunja Mijatović
Free speech is a cherished right in Europe. But 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).
When investigative 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. Throughout August and September 2020, 39 defamation lawsuits were taken out against three journalists at the investigative news website Necenzurirano in Slovenia. Primož Cirman, Vesna Vuković and Tomaž Modic are facing 13 different criminal defamation lawsuits each. They were filed by a tax expert who argues that their reporting on his business dealings – including a controversial loan to the political party of the Slovenian Prime Minister, the SDS – contains false information and has damaged his honour and reputation. 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. In another current case in South Tyrol, criminal court proceedings have been brought by the provincial councillor in charge of agriculture and by apple farmers against environmental activists and the publisher of a book denouncing the high levels of pesticide use in the region.
These are just a few examples of abusive lawsuits intended to intimidate and silence critics. Commonly known as “SLAPPs”, these suits pose a significant and growing threat to the right to freedom of expression in a number of Council of Europe member states, perverting the justice system and the rule of law more generally.
SLAPPs: lawsuits with an intimidating effect
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.
This problem goes beyond the press. Public watchdogs in general are affected. Activists, NGOs, academics, human rights defenders, indeed all those who speak out in the public interest and hold the powerful to account might be targeted. 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.
It should be no surprise that SLAPPs are multiplying in areas such as environmental and consumer protection, crime prevention or corruption allegations. A typical example is when a large company sues journalists or activists who have exposed an environmental disaster. France is a case in point. In 2018 two companies affiliated to the Bolloré Group sued three newspapers (Mediapart, L’Obs and Le Point) and two NGOs (Sherpa and ReAct) for defamation for publishing accusations of land grabbing made by villagers and farmers in Cameroon. This was one of more than 20 lawsuits filed by companies associated with the Bolloré Group, particularly palm oil companies Socfin and Socapalm.
I have also recently received information about specious lawsuits against LGBTI activists, in which wealthy conservative organisations have taken local human rights defenders to court as a means of intimidating them and hampering their work.
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. 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.
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.
Several texts adopted at the Council of Europe refer explicitly to the problem of SLAPPs or other forms of intimidating or vexatious litigation against journalists and media outlets, including online media. The Recommendation on the roles and responsibilities of internet intermediaries, adopted by the Committee of Ministers in March 2018, states explicitly that “State authorities should consider the adoption of appropriate legislation to prevent strategic lawsuits against public participation (SLAPP) or abusive and vexatious litigation against users, content providers and intermediaries which is intended to curtail the right to freedom of expression.”
In addition, the 2012 Declaration of the Committee of Ministers on the Desirability of International Standards dealing with Forum Shopping in respect of Defamation, to ensure Freedom of Expression, touches upon a specific aspect of SLAPPs, namely so-called “libel tourism”, a tactic that is used by many litigators who file a complaint with the court thought most likely to provide a favourable judgment and where it is easy to sue.
Finding the right response
To counter SLAPPs effectively, a comprehensive response should be devised. In my view, this should follow a threefold approach:
- preventing the filing of SLAPPs by allowing the early dismissal of such suits. This should go hand in hand with an awarenessraising exercise among judges and prosecutors, and proper implementation of the case-law of the European Court of Human Rights on defamation;
- introducing measures to punish abuse, particularly by reversing the costs of proceedings;
- 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. I found it encouraging to see that a coalition of NGOs recently published a policy paper on how the EU should end SLAPPs and proposed a number of short- to medium-term measures to address this issue at EU level.
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.
While this practice primarily affects the right to freedom of expression, it also has a dramatic impact on public interest activities more broadly: it discourages the exercise of other fundamental freedoms such as the right to freedom of assembly and association and undermines the work of human rights defenders. This means that it touches on many aspects of my mandate and I will continue to pay close attention to this issue. I believe that the Council of Europe and its member states are well placed to play a role in this context.