Strategic Lawsuits Against Public Participation (SLAPP) is a type of litigation (or threat of litigation) that are used, as the name suggests, strategically by claimants against organisations and individuals – including NGOs, activists, academics, whistleblowers, and journalists – to shut down free speech. Consequently, they pose a threat to democracy, that as members of society we should all be concerned about.
This threat to our public sphere is animated by the increasing number of high-profile examples of SLAPP used against journalists from across Europe. For instance, at the time of her assassination, the Maltese investigative journalist, Daphne Caruana Galizia, was facing 47 civil and criminal libel suits, filed in various jurisdictions, from Malta, to the UK and the US. And, in Poland, since the Law and Justice (PiS) party came to power in 2015, the country’s second-largest daily newspaper Gazeta Wyborcza has received over 55 legal threats as a result of its work. The cases are brought by powerful state actors such as the Deputy Prime Minister and PiS chairman, Jarosław Kaczyński; the state television broadcaster, Telewizja Polska S.A.; and, other state-owned companies and individuals with close ties to the governing party.
What are they used for?
They are typically used to prevent us, as members of the public, from learning about matters of public interest that could be reputationally harmful to the claimant (but is not necessarily illegal because it is, for example, defamatory), rather than to vindicate their reputation or obtain an award of damages for harm that has actually been suffered. Thus, a common trait with SLAPP litigation is an imbalance of power between the claimant and the defendant, with claimants often being companies or wealthy and often powerful individuals, whereas defendants tend to be people and organisations with significantly less resources and influence. This is particularly concerning when you consider the growing army of independent journalists who we as the public rely upon to make valuable contributions to public discourse who do not have the financial and legal support of a mainstream newspaper or broadcaster behind them.
Why all the fuss?
Although many SLAPP may be un-meritorious and vexatious, with the claimants knowing that they will never ‘win’, at least in a legal sense, the victory for them is in using the SLAPP, or even just the threat of costly and time-consuming legal action, to stifle any criticism or debate about their activities (remember that they are very often instigated by wealthy claimants against defendants that do not have such deep pockets).
The impact of this strategic approach to reputation management on the freedom of speech of journalists is illustrated by a recent openDemocracy article which described the effects of legal action pursued against them by Jeffery Donaldson, the now Democratic Unionist Party leader, stating “Those two years cost us a lot. We spent months dealing with legal letters, burning through thousands of pounds and precious time that would otherwise have been spent on our journalism. The psychological toll was even higher.” The case eventually became time expired. If this effect on our journalists is not concerning enough, perhaps what is even more worrying for us as the public is what we do not get to hear as a result of journalists’ self-censoring because of SLAPP, such as the delayed publication of Billion Dollar Whale or the blocked UK publication of Karen Dawisha’s Putin’s Kleptocracy.
Why are we hearing about them now?
SLAPPs are not new. In fact, in jurisdictions such as Canada and the United States, anti-SLAPP legislation and well-developed case law have existed for a number of years to restrict their deployment and protect free speech (this is something I’ve recently extensively on in a recent Legal Studies article, available here). However, in Europe, and in the UK, where no such laws exist, the increasing use of SLAPP has, understandably, caused concern amongst a number of actors, including civil rights groups and journalists.
Where are they being used?
SLAPPs cases in Europe are being actively documented through the European Centre for Press and Media Freedom Mapping Media Freedom tool, as well as the Council of Europe’s ‘Platform to Promote the Protection of Journalism and Safety of Journalists’. This increased activity led to the Coalition Against SLAPPs in Europe initiative, which was launched in March 2021, and saw 106 civil society organisations sign a public call for the Council of Europe to introduce a recommendation to combat SLAPPs.
The joint statement points to the growing body of evidence that shows a rise in the use of SLAPPs, or the threat thereof, as a means of silencing critical expression across the continent. This initiative follows a similar one launched in December 2020, to push for the adoption of a European Union Directive to address the use SLAPPs amongst its member states. Most recently, in June 2021, a study commissioned by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs at the request of the JURO Committee recommended the adoption of an anti-SLAPP Directive, and the recasting of the Brussels Ia Regulation and Rome II Regulation to limit the damage being done by SLAPP.
This ‘SLAPP in the face’ for free speech is not just a ‘European problem.’ It has well and truly reached UK shores. A November 2020 report from The Foreign Policy Centre (FPC), which surveyed 63 investigative journalists in 41 countries working to uncover financial crime and corruption, found that 73% of all respondents had received legal threats as a result of information they had published, with more than half saying it had made them more cautious as a result, and of the 71% of respondents who reported experiencing threats, legal threats were identified as having the most impact on their ability to continue working (48%), more so than psychosocial (22%), or physical and digital threats (each 12%).
Crucially, the UK was found to be by far the most frequent international country of origin for legal threats after the journalists’ home countries. It was almost as frequent a source of these legal threats (31%), as all EU countries (24%) and the United States (11%) combined.
Consequently, in January 2021, the UK Anti-SLAPP Coalition was formed. It is co-chaired by the FPC, Index of Censorship and English PEN, and consists of nineteen other organisations. The Coalition recently published a joint policy paper on ‘Countering Legal Intimidation and SLAPP in the UK’. One of the aims of the paper is ‘to form a starting point for legislative and regulatory initiatives to address this issue in the UK.’ In particular, it calls for a formal Parliamentary inquiry into SLAPPs to, firstly, examine this issue from you a UK context, including the impact it is having on those subject to these tactics as well as more broadly on public debate and discussion, and, secondly, to explore the legislative and regulatory proposals needed to counter it, including a potential UK anti-SLAPP law. According to the paper’s Explanatory Notes, such a law should have the following components:
- Accelerated Procedures: any lawsuit targeting acts of public participation should be subject to a merits test (e.g. probable chance of success) at the earliest possible stage in proceedings (this is the case in Canada, for example).
- Sanctions: where the defendant is successful, full legal costs should be awarded to them, with the possibility of punitive or exemplary damages being for repeat (or particularly egregious) claims.
- Stay of Proceedings: the disclosure process is often the most time and resource-intensive part of any civil claim. Consequently, it is often used by SLAPP claimants to make the litigation process as painful for the defendant as possible. Therefore, pending resolution of the anti-SLAPP motion, all disclosure obligations should be suspended.
Whether the Coalition is successful in its campaign obviously remains to be seen, and this could take some time as it is still, very much, in its infancy. Unfortunately for the Coalition, and free speech, SLAPP are often deployed by companies who use it as reputational management tool. Thus, a big hurdle it will have to overcome if it is to succeed is the probable lack of appetite for legislating against this type of litigation from a government that is pro-companies.
Dr Peter Coe is a Lecturer in Law at the School of Law, University of Reading, and a Research Fellow at the Institute of Advanced Legal Studies and Information Law and Policy Centre, University of London. He is the editor-in-chief of Communications Law.
A version of this article was originally published in The Conversation.