Urgent action needed by the Netherlands to protect civic space against SLAPPs and other forms of legal intimidation

ECPMF

30 March 2023

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Legal intimidation and SLAPPs (Strategic Lawsuits Against Public Participation) are attempts to intimidate and silence public watchdogs through lengthy and expensive litigation proceedings by starting meritless lawsuits. These threats mostly target civil society actors participating in public debates, including human rights advocates, whistle-blowers, climate activists and even academics more broadly. Under the pretext of seeking justice or protecting their rights, those who start these actions only seek to drain them from their resources (time and money) and force them to self-censor.

 

These abusive tactics have become a very effective way to repress dissent and limit the public’s access to truthful information. Perhaps the most famous example of SLAPPs is the case of the Maltese journalist Daphne Caruana Galizia, who at the time of her death had 47 defamation cases pending against her. Similar intimidatory tactics are also taking place closer to home. Dutch journalist Okke Ornstein was an exemplary case in 2016, when he was imprisoned for criminal defamation for exposing corruption in Panama; the lawsuits filed by Pretium Telecom against several journalists like Peter Olsthoorn for publishing about their seemingly unethical practices; the legal actions started by different dairy companies to stop the public campaign of Dier&Recht bringing attention to the animal cruelty that is part of the industry; among many others. As such, SLAPPs are a growing threat to freedom of speech, press freedom, civil society, and democracies all over the world. The Netherlands is no exception.

 

Due to these mounting concerns, countries such as the USA, UK, Canada, Australia, South Africa, and the Philippines have been taking firm steps to stop legal intimidation via laws or their judiciaries. For example, the UK both set out a Call for Evidence to collect as much SLAPPs data as possible in a short period of time as well as adopt a criteria-test to define and recognize SLAPPs cases. In 2010, The Supreme Court of the Philippines introduced limited anti-SLAPP protections in the cases related to environmental protection in its Rules of Procedure for Environmental Cases. In 2021, in South Africa, the Western Cape High Court established an Anti-SLAPP defence available for defendants who believe that a lawsuit is brought with the intention of silencing them (Case Number 7595/2017). We believe that the Netherlands (and the European Union, and all its member states) cannot lag behind in putting a stop to SLAPPs and other forms of legal intimidation against public watchdogs.Therefore, we call on the Dutch authorities to: 

 

Establish a systematic and coordinated mechanism to monitor these forms of intimidation.

The Netherlands should systematically monitor SLAPPs and other forms of legal intimidation against journalists, climate activists, human rights defenders, and other public watchdogs. The current cabinet’s position as expressed in the BNC fiche from June 3rd, 2022 is that there are few to no SLAPPs in the Netherlands. We believe this is not necessarily accurate and it is not a reason to refrain from preventative measures, given the proliferation of SLAPPs across Europe and the absence of adequate monitoring of SLAPPs. For example, recent data collected by the NVJ shows that legal intimidation against journalists in the Netherlands is very real: 1 out of 10 journalists have faced legal action(s) in connection with a publication; 25% of journalists are more cautious with publishing their work due to the legal risks related to journalism; and 10% even adjusts their publication or refrains from publishing completely. It is vital that from now on, these forms of legal harassment are monitored, not only against journalists but against civil society more broadly. Moreover, such monitoring must be systematic and coordinated. Besides quantitative monitoring, more background research is needed to better understand the source and rationale behind these threats.

 

Next to obtaining a better understanding of the level and scope of legal intimidation against civil society actors in the Netherlands, it is crucial that the Netherlands supports the EU regulatory proposals to protect journalists, climate activists, human rights defenders, and other public watchdogs, including our own organizations, against such harassment, including suits abroad that might lead to enforcement proceedings in the Netherlands. Therefore the undersigned organizations call on the Netherlands, as a global champion of freedom of expression and human rights more broadly, in particular to: 

 

Take a leading role in ensuring ambitious and robust legislative measures are adopted to address SLAPPs across Europe.
We urgently need legislation and regulatory action to protect these vital actors in society who serve the public interest. The EU anti-SLAPP Directive and the accompanying Recommendation as proposed by the European Commission, currently being debated in the EU member states, provide a solid foundation. However, the recently leaked version of the Anti-SLAPP Directive as coordinated by the Swedish Presidency of the European Council has immensely watered-down the provisions of the EU Commission’s initial proposal. We strongly believe that in order for any legislation to effectively protect those affected by SLAPPs and other forms of legal intimidation, the Netherlands should commit to ensuring that  the provisions of the initial SLAPPs Directive are preserved as much as possible. 

 

The Netherlands should take a frontrunning role by promoting progressive anti-SLAPP protections within its borders and more widely in Europe by supporting the EU Anti-SLAPPs Directive. Adopting robust legislative and regulatory measures to protect against SLAPPs is not only important in terms of preventing these forms of intimidation from taking place, but also to maintain the Netherlands’ longstanding reputation as a champion of freedom of expression and human rights globally. 

 

Signed: 

Article 19

European Centre for Press and Media Freedom (ECPMF)

European Federation of Journalists (EFJ)

Free Press Unlimited

Greenpeace International

International Union for Conservation of Nature (IUCN), National Committee of the Netherlands

Nederlandse Vereniging van Journalisten (NVJ)

Netherlands Helsinki Committee (NHC)

OBC Transeuropa (OBCT)

Oxfam Novib

Otto Volgenant, lawyer (independent) 

Tarlach McGonagle, academic (independent)

This statement was coordinated by the Coalition Against SLAPPs in Europe and the Media Freedom Rapid Response (MFRR), which tracks, monitors and responds to violations of press and media freedom in EU Member States and Candidate Countries. This project provides legal and practical support, public advocacy and information to protect journalists and media workers. The MFRR is organised by a consortium led by the European Centre for Press and Media Freedom (ECPMF) including ARTICLE 19 Europe, the European Federation of Journalists (EFJ), Free Press Unlimited (FPU), International Press Institute (IPI) and CCI/Osservatorio Balcani e Caucaso Transeuropa (OBCT). The project is co-funded by the European Commission.

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