by Laurens Hueting, Paulina Milewska, and Theresa Seipp of the European Centre for Press and Media Freedom

ECFPM SLAPP project that was funded by the Justice for Journalists Foundation Investigative Grant Programme.

In recent years, SLAPPs (strategic lawsuits against public participation) became a buzzword in the international freedom of expression organizations. 

SLAPPs are “groundless or exaggerated lawsuits and other legal forms of intimidation initiated by state organs, business corporations and individuals in power against weaker parties – journalists, civil society organizations, human rights defenders and others.”[1] 

SLAPPs are typically based on criminal and civil defamation law provisions and other torts, labor, criminal, privacy, and data protection law provisions.

The winning of the case is usually not SLAPPs’ primary aim. They are filed to intimidate, induce fear, tire, and consume the target’s financial and psychological resources.[2] The desired outcome is to silence the speaker and also to exercise a chilling effect on society.

In particular, SLAPPs against journalists and media workers intend to silence critical reporting in the public interest. They are detrimental to media freedom, the right to freedom of expression, and the right to information.

Beyond the censoring effect on the targets of specific SLAPP actions, they also have a chilling effect on others who report the same or similar issues. Unable to afford the time and cost that will be tied up even in merely responding to aggressive legal letters, let alone actual litigation, journalists and editors can be forced to abstain from reporting on specific issues in the public interest.

Currently, SLAPPs do not fall under any specific legal provision of any European Union member states. However, they pose a significant legal threat for independent media and watchdogs across Europe.[4] 

Polish media outlets under threat

In consolidated democracies, SLAPPs are commonly filed by big corporations or businesspeople. However, in countries experiencing democratic backsliding, such as Poland, they serve as a tool for targeting the government’s political opponents, including the media.[5] 

As professor Wojciech Sadurski argued, independent media are still strong in Poland, despite being a target of attack from the government and pro-government media[3]. 

Nevertheless, the problem of SLAPPs is affecting independent media in Poland strongly. 

According to the research conducted at European Centre for Press and Media Freedom under the Justice for Journalists Foundation project, since 2015, Gazeta Wyborcza has been targeted with 57 lawsuits. Polityka, the most prominent Polish political weekly magazine, and its investigative journalist Grzegorz Rzeczkowski, faces four lawsuits for covering the wire-tapping scandal that led to the victory of PiS in the 2015 election. An independent, donation-based portal OKO.press has nine lawsuits issued against them. These cases are both civil and criminal.

Powerful state actors, including government ministers, the PiS party chairman Jarosław Kaczyński, the state television broadcaster Telewizja Polska S.A., judges, prosecutors, state-owned companies, and individuals with close ties to the governing coalition, bring cases against independent media in Poland.

The EU-wide problem

Impairing access to information and the right to freedom of expression of those who speak up in the public interest is not the only way SLAPPs undermine the European legal order. 

As concerns the European Union, to the extent that they distort and abuse civil law remedies, SLAPPs may undermine the trust between the EU member states’ legal systems, posing a threat to access to justice and judicial cooperation. 

By impairing the medias’ public watchdog function, SLAPPs also imperil the effective enforcement of the EU law, including in connection to the internal market and protection of the EU budget. The European Commission cannot monitor those issues alone.

SLAPPs are also a threat to the freedom of movement, as they discourage potential targets from confidently operating in jurisdictions where the risk of such abusive litigation is higher than elsewhere in the EU.

EU rules, providing robust and consistent protection against SLAPPs, would mark a crucial step towards ending this abusive practice. 

As part of a broad coalition of civil society organizations, the European Centre for Press and Media Freedom (ECPMF) has been advocating for the adoption of an EU anti-SLAPP Directive to establish harmonized, EU-wide minimum standards of protection against SLAPPs.

These standards would include appropriate procedural safeguards, supportive and protective measures for targets, and deterrent and awareness-raising provisions. 

The Council of Europe concern

The European Court of Human Rights has established that the Council of Europe states have a positive obligation under Article 10 of the European Convention on Human Rights to “create a favourable environment for participation in public debate”.[6] 

The CoE has promulgated limited standards on protection against SLAPPs concerning defamation laws,[7] investigative journalism[8], and internet intermediaries.[9] 

However, a coherent set of guidelines in the form of a Recommendation with a full set of principles on how to protect the right to freedom of expression and other acts of public participation from the threat of SLAPPs is missing. 

The Commissioner for Human Rights, Dunja Mijatovic, has stated that it is “high time to tackle a practice which puts pressure both on journalists and civil society as a whole and dissuades them from critical reporting”.

The commissioner added that she believes “that the Council of Europe and its member states are well placed to play a role in this context”.[10] 

A long-known problem

In 1989, in the first major academic study of SLAPPs, George Pring wrote that the “apparent goal of SLAPPs is to stop citizens from exercising their political rights or to punish them for having done so. SLAPPs send a clear message: that there is a ‘price’ for speaking out politically.”[11] 

In the 1996 book that has become a principal reference for the study of SLAPPs, Pring and Penelope Canan expanded this concept. They argued that “filing the SLAPP, economic interests express their intolerance for and seek to stifle the expression and views of other citizens, effectively denying the equality of citizenship so fundamental to informed political decision-making.”[12]

This piercing assessment remains valid today, and it explains why, to protect public participation, the rule of law, and ultimately our democracies, urgent action in the form of an EU Anti-SLAPP Directive and a Council of Europe Recommendation is needed to protect journalists and other watchdogs from the abusive litigation tactics.

International Private Law and SLAPPs

While an EU-wide anti-SLAPP Directive and a Council of Europe Recommendation are necessary and worthwhile steps to counter SLAPPs, they should not be isolated efforts. 

In the United States, excessive civil litigation was identified as a growing threat to press freedom.[13] Civil litigation systems in some countries create particularly beneficial conditions for SLAPPs. It depends on various factors, such as how expensive legal costs are, the elasticity of laws targeting free speech, and the existence of safeguards, including anti-SLAPP regulations.[14] Consequently, adopting anti-SLAPP legislation alone does not do the job.

International private law, specifically the Brussels I (recast) and Rome II Regulations, currently allows claimants to choose a jurisdiction that best fulfills their goals – often to silence the critical press. 

SLAPPs are a direct threat to press and media freedom and cause a chilling effect on democratic participation within the EU. They pose threats to democracy and the EU legal order. Tolerating an abuse of courts and laws to threaten press freedom is contrary to EU values, namely democracy, the rule of law, and respect for human rights enshrined in Article 2 of the Treaty on the European Union (TEU). 

Therefore the EU reforming Brussels I (recast) and Rome II Regulations, is a necessary complementary measure to counter SLAPPs as threats against press and media freedom.[15]

“Forum shopping” and defamation cases

Above all, the legal reform shall aim at harmonizing the rules for jurisdiction in defamation cases.

As the law currently stands, Brussels I (recast) Regulation contains rules which enable claimants to choose where to make a claim, allowing so-called forum shopping in defamation cases. 

The situation, where journalists must defend themselves in a country where they are neither based nor know the legal system, creates legal uncertainty and is also contrary to the right of a fair trial and equality of arms principle, as determined in Article 2(2) Brussels I (recast) Regulation.[16]

Generally, in private international law, jurisdiction is governed by the rules lex loci delicti (law of the place where the tort was committed) or the lex domicili (law of the place of domicile or habitual residence) of the defendant. 

According to EU regulations on jurisdiction and enforcement of judgments, the general rule states that defendants shall be sued before the member state courts where they are domiciled.[17] Article 2(1) Brussels I (recast) states that “he who acts must follow the forum of the thing involved (the subject of the lawsuit, meaning the defendant)”, thus acknowledging that for the defendant “it is more difficult, generally speaking, to defend oneself in the courts of a foreign country”.[18]

However, under specific conditions, it is possible to sue defendants in other jurisdictions than they reside. That applies to matters related to tort, delict, or quasi-delict, where the defendant may be sued in the jurisdiction of the place where the “harmful event occurred”.[19] Defamation claims are often subject in SLAPPs against journalists. Therefore, in media-related defamation cases, it is likely for complex situations to occur as the country of publication and the country of distribution often differ.[20] 

The possibility to access an article online in a chosen country is sufficient to establish a connection to the jurisdiction where a lawsuit is sought. The possibility of bringing actions in various jurisdictions is called the “mosaic approach”. It is criticised for threatening and possibly harassing defendants, as the plaintiff may begin proceedings before multiple or unknown forums within the EU, thereby increasing legal costs and uncertainty.[21]

The Rome II Regulation does not regulate which national law will apply to a defamation case. 

Article 1(2)(g) Rome II refers to obligations arising out of violations of privacy and rights relating to personality, including defamation. Accordingly, the absence of a common rule on the choice of law in defamation cases results in a lack of legal certainty.[22] To avoid any legal threats, journalists are therefore likely to “apply the lowest common denominator of press freedom”.[23] Simultaneously, it allows claimants to select the most favourable substantive law, which in SLAPP cases against critical journalists likely leads to them being subject to the lowest standards of freedom of expression.

International Private Law reform suggestions

Dr Justin Borg-Barthet emphasised the need to change jurisdiction rules, especially in online defamation cases, where one can be sued.[24] 

Accordingly, defamation cases should be filed where the defendant resides unless the parties agree otherwise. Depending on the specific circumstances, a flexible approach in determining jurisdiction in online defamation cases may be necessary. The connection between the tortious situation (defamation) and the forum state must be very strong.[25] 

For instance, merely being able to access a critical investigation in the respective jurisdiction should not suffice. That argumentation is also grounded in Article 6 ECHR, which obliges states to provide sufficient access to court while ensuring foreseeability for the defendant regarding the jurisdiction to be sued.[26]

In practice, to effectively counter SLAPPs and prevent them from threatening press and media freedom and democracy and the rule of law, concrete reforms of Brussels I (recast) and Rome II Regulations are needed. 

A group of NGO’s demands the following reforms to tackle the issues described above.[27] 

First, the Brussels I (recast) Regulation needs to be amended to ground jurisdiction in the defendant’s domicile in defamation matters. This would remove the possibility to abuse ability to choose courts that have little connection to the dispute. 

Second, the omission of defamation from the Rome II Regulation scope requires journalists to apply the lowest standard of press freedom available in the laws that might be applied to a potential dispute. The Rome II Regulation should be amended to harmonise rules on choice of law in defamation, which renders the applicable law predictable to the parties. It is recommended to include a new rule, which would require applying the law of the place to which a publication is directed.

Conclusions

 SLAPPs are a severe threat to media and press freedom, freedom of expression, the rule of law and democracy, the foundational EU values that EU lawmakers are obliged to protect.

The problem of SLAPPs against journalists, activists, and human rights defenders must be addressed on the EU level. Legislative action is needed. The EU anti-SLAPP Directive and Council of Europe Recommendations are fundamental to raise awareness about SLAPPs dangers and to lead to a change. 

The EU and the CoE efforts should be complemented by a reform of private international law, particularly Brussels I (recast) and Rome II Regulations. The reform is essential to avoiding forum shopping in defamation lawsuits. 

Furthermore, media freedom organizations and other NGOs should continue providing direct support to those affected by SLAPPs and raising public awareness about the abusive use of lawsuits to silence critical voices and its detrimental impact on human rights and democracy.

References

 [1] Bárd P., Bayer J., Chun Luk N. and Vosyliute L. 2020 https://ec.europa.eu/info/sites/info/files/ad-hoc-literature-review-analysis-key-elements-slapp_en.pdf, (accessed 16.02.2021)

[2] Williams N., Hueting L. and Milewska P., The increasing rise, and impact, of SLAPPs: Strategic Lawsuits Against Public Participation, 2020, https://fpc.org.uk/the-increasing-rise-and-impact-of-slapps-strategic-lawsuits-against-public-participation/ (accessed 16.02.2021)

[3] Sadurski W., Poland’s Constitutional Breakdown, Oxford University Press, Oxford, 2019

[] Bárd P., Bayer J., Chun Luk N. and Vosyliute L. coordinated by Carrera S., 2020

[5] Ibid.

[6] ECtHR 29 January 2015, Uzeyir Jafarov v Azerbaijan.

[7] CM/Declaration of 4 July 2010 on the desirability of international standards dealing with forum shopping in respect of defamation, “libel tourism”, to ensure freedom of expression.

[8] CM/Rec(2016)1 recommends that “Member states must exercise vigilance to ensure that legislation and sanctions are not applied in a discriminatory or arbitrary fashion against journalists and other media actors. They should also take the necessary legislative and/or other measures to prevent the frivolous, vexatious or malicious use of the law and legal process to intimidate and silence journalists and other media actors” (Appendix, nr. 13). In the 2007 Declaration by the Committee of Ministers on the protection and promotion of investigative journalism, it was mentioned that member states must ensure that prosecutions or sanctions are “not misused to intimidate media professionals and in particular investigative journalists.” 

[9] CM/Rec 2018/2, on the roles and responsibilities of internet intermediaries, contains an explicit reference to the need for action to be taken against SLAPPs in the digital environment. 

[10] https://www.coe.int/en/web/commissioner/-/time-to-take-action-against-slapps 

[11] Pring, ‘SLAPPs: Strategic Lawsuits against Public Participation’, 7 Pace Environmental Law Review 3 (1989), pp. 5-6.

[12] Pring & Canan, SLAPPs: Getting Sued for Speaking Out (1996), p. 221.

[13] Verza Sofia, SLAPP: the background of Strategic Lawsuits Against Public Participation, available at https://www.ecpmf.eu/slapp-the-background-of-strategic-lawsuits-against-public-participation/

[14] Canan, Penelope, Penelope Canan, “The SLAPP from a sociological perspective”, Pace Environmental Law Review Vol. 7(1), 1989

[15] See article 2 Treaty on the European Union (TEU)

[16] See article 6 European Convention on Human Rights

[17] See article 4(1) of the Brussels (recast) Regulation and article 2(1) of the Brussels I Regulation

[18] See article 2(1) 2(2) Brussels I (recast) Regulation

[19] See article 4 Rome II Regulation

[20] Prevost, Emeric, Liability and jurisdictional issues in online defamation cases, Council of Europe, Strasbourg 2019, https://rm.coe.int/liability-and-jurisdictional-issues-in-online-defamation-cases-en/168097d9c3 (accessed 16.02.2021)

[21] Prevost, Emeric, Liability and jurisdictional issues in online defamation cases, Council of Europe, Strasbourg 2019, https://rm.coe.int/liability-and-jurisdictional-issues-in-online-defamation-cases-en/168097d9c3 (accessed 16.02.2021)

[22] ECPMF et. al, Ending Gag Lawsuits in Europe Protecting Democracy and Fundamental Rights, June 2020, available at https://www.ecpmf.eu/ending-gag-lawsuits-in-europe-protecting-democracy-and-fundamental-rights/ (accessed 16.02.2021), and: Bárd, Petra, Bayer, Judit, Luk,Ngo Chun, Vosyliute, Lina, Ad-Hoc Request SLAPP in the EU context, May 2020, available at https://ec.europa.eu/info/sites/info/files/ad-hoc-literature-review-analysis-key-elements-slapp_en.pdf (accessed 16.02.2021)

[23] Borg-Barthet, Justin, Advice concerning the introduction of anti-SLAPP legislation to protect freedom of expression in the European Union, April 2020, available at https://www.ecpmf.eu/wp-content/uploads/2020/05/EC-Advice-concerning-the-introduction-of-anti-SLAPP-legislation-to-protect-freedom-of-expression-in-the-European-Union.pdf (accessed 16.02.2021)

[24] Borg-Barthet, Justin, The Brussels Ia Regulation as an Instrument for the Undermining of Press Freedoms and the Rule of Law : an Urgent Call for Reform, Centre for Private International Law Working Paper Series Vol. 7, 2020, University of Aberdeen, Aberdeen , p. 1 – 29

[25] Prevost, Emeric, Liability and jurisdictional issues in online defamation cases, Council of Europe, Strasbourg 2019, https://rm.coe.int/liability-and-jurisdictional-issues-in-online-defamation-cases-en/168097d9c3 (accessed 16.02.2021)

[26] See article 6 ECHR

[27] Borg-Barthet, Justin, Advice concerning the introduction of anti-SLAPP legislation to protect freedom of expression in the European Union, April 2020, available at https://www.ecpmf.eu/wp-content/uploads/2020/05/EC-Advice-concerning-the-introduction-of-anti-SLAPP-legislation-to-protect-freedom-of-expression-in-the-European-Union.pdf (accessed 16.02.2021)