Action against SLAPPs
The European Commission has said that it is taking action to improve protection of journalists and human rights defenders from abusive court proceedings.
Finally, some sort of action is going to be taken against Strategic lawsuits against public participation, commonly known as ‘SLAPPs’.
These kinds of lawsuits are a form of harassment used primarily against journalists and human rights defenders to prevent or penalise them for speaking up on issues of public interest.
Several media houses and journalists in Malta have been threatened with SLAPP suits over the years, with threats of legal suits being filed in foreign jurisdictions where legal costs for fighting them are so high that they could financially damage local media houses.
The proposed directive by the European Commission covers civil matters with cross-border implications. Among other things, it will enable judges to dismiss manifestly unfounded lawsuits against journalists and human rights activists.
This is a step in the right direction and one hopes that such a directive is swiftly implemented.
But the directive goes further. The Commission is also adopting a complementary Recommendation to encourage Member States to align their rules with the proposed EU law for domestic cases and in all proceedings, not only civil matters. The Recommendation also calls on Member States to take a range of other measures, such as training and awareness raising, to fight against SLAPPs.
There have been cases where multiple lawsuits in local courts are filed against a single journalist as a way to try and silence them, and this is something that also needs to be tackled. Malta would do well to take action on this issue. One can mention the SLAPPs against Daphne Caruana Galizia as one example.
Of course the EU countries themselves will have a say in the final decision regarding the directive, and one hopes that they realise just how dangerous to freedom of speech and democracy SLAPP lawsuits are. The more protection journalists can be afforded against such abusive lawsuits, the better.
SLAPP lawsuits are different from libel cases. If a person feels defamed, they can file for a libel suit and challenge the content of an article. However, in a SLAPP lawsuit, the content of the article would be true, but the person would, for example, file a lawsuit in another country where legal costs are exorbitantly high, or would threaten to do so unless the article is removed. This not only tries to silence journalists, but also creates a chilling effect on them.
The chilling effect would effectively mean that journalists would think twice before writing an article about someone for fear of SLAPP lawsuit retaliation. This could prevent the truth about important issues, such as crime and corruption, from emerging.
Among the other proposals, the EC is recommending that the target of SLAPP suits have a right to claim and obtain full compensation for the material and immaterial damage, and also to introduce dissuasive penalties - where to prevent claimants from starting abusive court proceedings, the courts will be able to impose dissuasive penalties on those who bring such cases to the court.
These actions will help prevent SLAPP suits from being brought before the courts. One would need to ensure that the penalties are high enough to prevent the ultra-rich from filing such abusive suits.
One particularly important recommendation is that EU states should refuse recognition of a judgment coming from a non-EU country, against a person domiciled in a Member State, if the proceedings are found to be manifestly unfounded or abusive under the Member State’s law. This would offer protection against SLAPP suits filed in high-cost jurisdictions like the USA.