The Use of SLAPPs to Silence Journalists, NGOs and Civil Society

Strategic Lawsuits Against Public Participation (SLAPP) can be defined as lawsuits intended to intimidate and silence critics by burdening them with the cost of a legal defense, until they abandon their criticism or opposition.

Some jurisdictions have already passed anti-SLAPP laws. In its Action plan for democracy, of 2020, the Commission had already announced its intention to present an initiative to protect journalists and civil society against SLAPPs in 2021. An Expert group was created in December 2020.

The topic is of course not new. It has gained momentum again – possibly following the assassination of Daphne Caruana Galizia in October 2017- also at the Council of Europe, and within the civil society (see, for instance on the need for a EU legislative proposal to protect public watchdogs from legal harassment  here and here.)

On 5 July 2020, a study commissioned by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs at the request of the JURI Committee on SLAPP and PIL instruments was published, authored by J. Borg-Barthet (who is one of the members of the Expert Group mentioned above), Benedetta Lobina and Magdalena Zabrocka.

The document analyses legal definitions of Strategic Lawsuits Against Public Participation (SLAPP), assesses the compatibility of anti-SLAPP legislation with EU law, and recommends that an anti-SLAPP Directive be adopted.

Of special interest for PIL is that it also recommends that the Brussels I bis Regulation and Rome II Regulation be recast to limit the incidence of SLAPPs. The final conclusion in this regard reads as follows:

In addition to the adoption of an anti-SLAPP Directive, it is recommended that the Brussels Ia Regulation be recast with a view to adopting a bespoke rule concerning defamation claims and thereby to distinguish jurisdiction in defamation cases from ordinary torts. To this end, it is recommended that jurisdiction should be grounded in the forum of the defendant’s domicile unless the parties agree otherwise. This would enable public interest speakers to foresee where they will be expected to defend themselves, and would be in keeping with the core values of the Brussels Ia Regulation, namely predictability and the limitation of forum shopping.
Greater predictability as to the outcomes of choice of law processes is also needed to dissuade meritless litigation intended to suppress public participation. Accordingly, it is recommended that a new rule be included in the Rome II Regulation which would harmonise national choice of law rules in defamation cases. It is recommended that this rule should focus on the closest connection with the publication and its audience, namely the law of the place to which the publication is directed.

I  expect comments – here or elsewhere- to both proposals and their underlying rationale.

The first impression is a little bit disappointing. The proposal regarding the applicable law is a general one for defamation cases, i.e., it is not SLAPP-specific. On jurisdiction, I would be cautious to spouse the assertion on page 39:

(…), the Court of Justice has developed a body of case law whose net effect is to afford further opportunities for forum shopping and vexatious litigation strategies in defamation cases, particularly where the claimed defamatory content is posted online.

Moreover  a solution which entails giving up eDate and Martinez looks unrealistic to me (in this regard, though, C-800/19 is worth considering; the Opinion was available in February 2021). Vexatious claims have always existed. The lis pendens and related actions rules provide a solution at the jurisdictional level for a plurality of claims within the EU: a word on why they would (or not) be fit in an anti-SLAPP scenario is missing. In addition, and more important, the Brussels regime does not prevent reacting against vexatious claims with the procedural tools available at the national level, such as abuse of process. That is why I am not convinced either by the following sentence, on page 42:

‘In particular, judgments concerning the deployment of antisuit injunctions reveal a Court that is reluctant to replace the ex ante general analysis deployed by the legislator with its, or a national court’s, judgement of the merits of jurisdictional justice in individual cases‘

Even if the bottom line was correct, antisuit injunctions would not have provided the pertinent example.

Beyond the EU borders, with the exception of Articles 33 and 34 of the Brussels I bis Regulation, which have no parallel in the Lugano Convention, the situation is left to the Member States; simultaneous proceedings before the courts of the UK and the USA is simply a situation that cannot be solved by the European lawmaker.

There is indeed a need to balance the interests of the claimants and of the defendant (the target of the strategic lawsuit) also in relation to international jurisdiction and to the conflict of law rule.

In my opinion, achieving the goal requires a more grounded examination; also, and mainly, to acknowledge that the problem is to be addressed at a different level – something that the Study does in its 5th part devoted to an anti-SLAPP directive.

But, just like the authors say, the adoption and implementation of such a directive may take too long. The time to react is now, and it is not imperative (not even for reasons of distribution of competences) to wait for Brussels to take the lead.

(Photo: The use of SLAPPs © Image used under the license of Adobe Stock)