From Zero to Hero

A 20-year-old activist being sued by a two-billion-euro company for highlighting the environmental impact of its activities. Local journalist facing criminal charges for sending an email with inquiries to a press office of a state owned company. The president of an NGO confronting a private indictment for pointing out that the state is benefiting from deforestation. A student accused of defamation after reporting to the university’s anti-discrimination committee that she was molested by a professor.

All these cases share at least two things in common. First, they have the characteristics of SLAPPs—Strategic Lawsuits Against Public Participation—legal actions initiated in response to statements on socially relevant topics, with the primary intent of discouraging the legal opponent from speaking out again. Second, they all happened in Poland.

And let’s be honest, to anyone with common sense, they all seem pretty ridiculous. And yet, even if the charges were eventually dropped or the lawsuit was dismissed, those targeted by these legal actions still had to bear the financial, psychological, and time burdens of participating in the proceedings.

But here’s a positive plot twist—Poland, once a country with one of the highest numbers of SLAPPs, might now be an example of how to deal with them. With third sector actors experienced in helping SLAPP victims and a willing Minister of Justice, Poland may have found the recipe for success.

This comprehensive approach includes a coalition of NGOs actively raising awareness and conducting essential trainings, the Helsinki Foundation for Human Rights (HFHR) preparing a policy paper outlining key directions for necessary legal changes, and the Polish Minister of Justice, with a deep human rights background, already promising legislative reforms and recognizing the importance of NGOs’ input in this process. The initiation of a comprehensive reform of civil and criminal law has been announced, with the responsibility for its execution assigned to legislative commissions within the Ministry of Justice. According to the Minister of Justice, the outcomes are expected in the spring, coinciding with Poland’s EU Presidency.

EU is taking the wheel

In May 2024, the EU’s “anti-SLAPP” directive (Directive on the protection of persons engaging in public debate from manifestly unfounded or abusive legal proceedings) came into effect. Its aim is to combat the serious threat to freedom of speech posed by legal actions taken against journalists or activists who raise important public interest issues. According to the directive, SLAPPs are “unfounded or excessive lawsuits, disguised as defamation actions or allegedly unconstitutional and/or civil rights violations, initiated against journalists or activists for exercising their political rights and/or freedom of speech and information on matters of public interest or social significance.”

The new Directive proposes the introduction of measures into the national legal systems of EU member states, such as the early dismissal of clearly unfounded lawsuits in legal proceedings, and the possibility of burdening the plaintiff with the costs of the proceedings, including full legal representation costs. The Directive stipulates that any natural or legal person who has suffered harm as a result of a SLAPP lawsuit can seek compensation. Although the Directive unfortunately applies only to civil proceedings with a cross-border dimension, its preamble states that it should serve as a minimum standard. Member states are encouraged to extend its application to other areas, including criminal or administrative proceedings, and to apply anti-SLAPP mechanisms to cases that do not have a cross-border character.

EU Directive backed by Council of Europe Recommendations

It is worth noting that additional support for the implementation of the directive is provided by the Recommendations of the Committee of Ministers of the Council of Europe CM/Rec(2024)2, adopted on April 5, 2024, concerning the combatting of Strategic Lawsuits Against Public Participation. Although the recommendations are not legally binding, they emphasize the need to apply measures to all cases, not just cross-border ones, and do not limit the obligation to introduce an early dismissal system solely to civil lawsuits, but also extend it to criminal, including misdemeanor and administrative cases. The recommendations highlight the need for expedited processing of SLAPP cases, the creation of a special compensation procedure for SLAPP victims, and education on recognizing and countering SLAPP cases.

The need to expand the provisions of the directive to include proceedings beyond just civil cases with a cross-border dimension is genuinely important and a justified concern. CASE, the Coalition Against SLAPPs in Europe, basing on an assessment of 570 cases identified 17 different legal bases for SLAPPs. Moreover, as the examples below show, many SLAPP cases fall outside the definition of cross-border, as proposed in the directive.

Poland, a shameful European SLAPPs leader

For years, according to statistics maintained by CASE Poland has recorded the highest number of criminal and civil cases aimed at silencing critical voices, initiated by politicians or related circles, including state-owned companies. SLAPPs clearly exploit the power imbalance between the parties in such proceedings and are intended to create a chilling effect on those who speak out in public debate, particularly critics of those in power. The political context, which greatly determines the level of threat to freedom of speech posed by SLAPPs, should not be overlooked: public criticism of state authorities and their allies takes on a different dimension under populist regimes. It is no longer seen as an important part of public debate, but as a dangerous attack on the ruling elites.

One of the most prominent examples of SLAPPs in Poland is the defamation case brought by Gaz System—a state-owned company that operates the gas industry network in Poland—against an activist from the Bombelki collective and the ecological magazine Zielone Wiadomości. This lawsuit was initiated in response to an article questioning the development of gas infrastructure in Poland. Another well-known case involves a lawsuit against Stefan Gardawski, an activist from the Warsaw-based association Miasto Jest Nasze. Three brief tweets, more about municipal government policies than about the developer, were enough for Dom Development to demand an apology and a payment of 25,000 PLN to a social cause. However, it’s important to note that, besides these tweets, the activist also organized protests against various developer actions. An example of a case where the plaintiff used their complete advantage rooted in power is the lawsuit filed by the Law and Justice party (PiS) against the GazetaMyszkowska.pl portal and its editor-in-chief after an article stated: “the fascist party has closed ranks, and a group of PiS councilors has submitted a request for an extraordinary session.”

The problem with SLAPPs is that even if they are partially or entirely unfounded, it doesn’t guarantee they will be dismissed. The justice system is inherently imperfect, much like any system that relies on human involvement. Judges may misapply—or completely overlook—the standards protecting freedom of speech, leading to a wrongful judgment in favor of the initiator of the SLAPP. This could be illustrated by a case of a local journalist, Rafał Remont. While preparing an article, he sent an email to the press office of a state-owned company, inquiring about a potential conflict of interest—the mayor of his town was also serving on the company’s board. In response, the mayor initiated criminal proceedings against him for defamation. It clearly follows form the ECtHR jurisprudence that information gathering is protected as it constitutes an essential preparatory step in journalism. One can hardly be punished for doing their due diligence in verifying the facts—writing an article without verifying its main claim at the source would constitute a breach of journalistic standards.

Despite this, Rafał Remont was found guilty of defamation in both instances and ordered to pay a 500 Euro fine and compensation. Following the first-instance judgment, he decided to leave journalism. It’s difficult to find a more striking example of the chilling effect SLAPPs can have. Rafał Remont’s case had a positive outcome—he was acquitted by the Supreme Court after the Ombudsman’s intervention and is now the editor-in-chief of a local news portal. Nevertheless, this case should serve as a clear example of the harmful effects of SLAPPs and highlight the urgent need to address them, including through training for judges.

The third sector paving the way forward

The anti-SLAPP directive came into effect in May, but the groundwork for its implementation had already begun. NGOs were actively preparing for the necessary changes. HFHR published a report on SLAPPs, which was based on both legislative analysis and court practice. The Foundation detailed SLAPP cases, particularly those where it provided legal assistance. Since voices in the public debate pointed out that Polish civil and criminal law already has tools to counter SLAPPs, HFHR wanted to see if the courts were actually using these tools. They requested rulings where these provisions had been applied in reputation protection cases, only to find that there are almost no such judgments. The conclusion was clear—effective implementation of the European anti-SLAPP directive is essential to protect public debate.

In April 2024, the NGOs Article 19, HFHR, Prague Civil Society Center, Watchdog Poland together with Agora, one of the biggest publishing houses in Poland, organized a Anti-SLAPP conference—Insights into Upcoming Regulations: an Outlook from Europe and Poland. Two days of discussion with journalists, representatives of the third sector, lawyers and SLAPP victims provided a meaningful insight on how to deal with that issue.

During the conference, HFHR presented the Minister of Justice with proposed directions for legal changes to implement the anti-SLAPP directive and other necessary measures to combat the misuse of legal tools against critical voices. The policy paper was prepared based on the experience gained from handling cases with SLAPP characteristics—HFHR provided legal assistance in nearly all of the cases mentioned in this post. Prior to its drafting, focused research was conducted in collaboration with judges, prosecutors, and advocates.

Aside from including the measures proposed in the anti-SLAPP directive, the basic notions are:

• The provisions of the directive should also extend to proceedings that lack a cross-border element.
• The implementation of the directive should be accompanied by either the abolition or amendment of the legal provisions most frequently used to initiate SLAPP-like proceedings, including the decriminalization of defamation.
• The concept of SLAPP should be clearly defined in the law. The definition of SLAPP should be based on an open and sufficiently comprehensive set of criteria that may indicate a given proceeding is a SLAPP.
• The terms “unfounded” and especially “manifestly unfounded” should not be part of the SLAPP definition. The law should protect against any proceedings aimed at stifling public debate, whenever they are abusive in nature;
• Regardless of the type of procedure, it is essential to introduce a reversed burden of proof—the responsibility to prove that the case is not a SLAPP should lie with the party initiating the proceedings;
• As established by ECtHR case law, the law should prevent legal entities exercising public power from seeking judicial protection for their reputation.

Recommendations from both the European Commission and the Council of Europe emphasize the importance of adequate training on how to deal with SLAPPs. Again, NGOs are already taking action, with Watchdog Poland organizing training sessions for legal professionals and HFHR training journalists in six different cities.

Poland becoming Europe’s anti-SLAPP trailblazer?

Several initiatives to implement the anti-SLAPP directive are being prepared across Europe. Countries such as Ireland, Malta, and the UK have drafted legal changes to align with the Directive. However, their complexity and potential impact have raised concerns. During the April conference, Minister of Justice Adam Bodnar emphasized that the implementation of the EU Directive in Poland should be as comprehensive as possible. Its provisions should be apply also to cases which do not have a cross border dimension. He stated that Poland should seize this opportunity to review all legislation that hinders freedom of expression, including the decriminalization of defamation. These reforms should be carried out by the Codification Committee of Civil Law in close collaboration with the Committee of Criminal Law.

This statement from the Ministry has heightened expectations among Polish civil society, editors, and the journalistic community, who are eagerly awaiting the promised reforms. It is clear that the recommendations prepared by the HFHR could provide a strong foundation for the Committee’s work, and that civil society expertise could be invaluable at any stage of the process. At the very least, we hope for cooperation in this regard, as Minister Bodnar’s declarations suggest.

Swiftly adopting legal changes to implement the EU anti-SLAPP directive should be an integral part of the rule of law reform packages. As the past years and shameful statistics from Poland have shown, SLAPPs are closely tied to the deterioration of the rule of law. While the number of SLAPPs initiated by politicians or government-affiliated entities may have decreased, they are still frequently used by private companies and remain common at the local level. With Poland set to take over the EU Presidency, the effective implementation of anti-SLAPP laws could transform the country into a model of progress after years of shamefully using abusive proceedings to suppress freedom of expression among government critics. Considering the political will and strong civil society engagement, Poland has a significant opportunity to become Central Europe’s trailblazer in this area.