SLAPPs, Daphne’s Law, and the Future of Journalism
What is the state of the game?
Media freedom has many dimensions. Whereas the EMFA deals directly with media oversight bodies and the likes, the proposed anti-SLAPP (strategic lawsuits against public participation) directive weighs into a more niche but crucially important topic: the silencing of journalists through bogus litigation. Such bogus litigation – or SLAPPs – does not intend to „win” cases but to slowly but steadily dry out journalists financially, emotionally, and socially. Currently, the Council of the European Union and the European Union Parliament are working on their proposals of the directive. While, the Council’s work seeks to lower the scope of protection offered by the proposed directive, the parliament wants to extend the level of protection. At this step, I argue, it is crucial that the Commission’s proposal will not be watered down and journalists are comprehensively protected from SLAPPs.
The background of SLAPPs in the EU
The journalist Daphne Caruana Galizia was assassinated in Malta in 2017. Previously to that, due to her investigative work, she received many threats for years. The ultimate goal was to silence her voice and put an end to her relentless reporting on corruption. The threats sent to her were also of legal nature, i.e. SLAPPs. At the time of her death there were around 50 cases opened against her, some of them in front of UK courts. Due to these cases, Daphne had to appear in courts almost every day and funds on her accounts were frozen. At the time of her death, her family inherited the cases.
SLAPPs are mostly abusing civil defamation but sometimes also other laws such as criminal defamation (in countries that still have it in their criminal codes) and the GDPR. The problem of SLAPPs in the EU is also connected to the issue of forum shopping. It is a practice of cherry-picking a jurisdiction by the plaintiff which is the most likely to provide a favorable judgment. Due to digitization, most of the content is available online, which makes it easy to argue that the interests of the plaintiff were violated in different member states. Before the assassination of Daphne, SLAPPs were almost not discussed in the EU context.
Currently, there is no legal definition of SLAPPs in EU law. The term was coined in the 1980s by two U.S. scholars, Georg W. Pring and Penelope Canan, to describe the lawsuits that were issued by powerful plaintiffs, such as politicians, business people and corporations, against those who speak up in the public interest, usually journalists, media outlets, academics and activists. In SLAPP cases, the imbalance of power between parties is particularly important. The plaintiff’s strategy is to prolong the case as long as possible, in order to drain the financial and psychological resources of the defendant. The goal is not necessarily to win the case but to trigger chilling effects that will also scare off others from writing about similar topics.
After the relentless advocacy of Daphne’s family and non-governmental organizations, now operating as the Coalition Against SLAPPs in Europe (CASE), the European Commission saw the importance of the threat of SLAPPs. Different studies and data collected by the Mapping Media Freedom project showed that SLAPPs are a problem in almost every member state and many of the cases have a cross border element – traveling from one EU state to another. SLAPPs affect the freedom of media, which is one of the pillars of democracy, in the EU strongly. Additionally, they affect the functioning of the common market and judicial cooperation. The response proposed by the Commission to this threat is the directive on protecting persons who engage in public participation from manifestly unfounded or abusive court proceedings (“Strategic lawsuits against public participation”) – named by vice president of the Commission, Věra Jourová, „Daphne’s Law”.
The EU’s solution
The Commission’s directive proposal has been praised by the CASE coalition as an ambitious step. It offers different legal tools that will make the SLAPP threat/case significantly less burdensome for a target. The proposed directive is accompanied by recommendations for member states, such as creating national legal frameworks that provide the necessary safeguards, providing trainings for legal professionals and potential SLAPP targets, organizing awareness raising and information campaigns, providing an access to individual and independent support for SLAPP targets and creating a national SLAPP data collection.
One of the reasons why the proposal was praised is its innovative take on cross-border cases. The anti-SLAPP directive is heavily based on Article 81 of the Treaty on the Functioning of the European Union, which covers judicial cooperation in civil cases. For the case to fall under the scope of the directive the cross-border element is necessary. Nevertheless, the proposal defines cross-border cases to include ones where the domicile of the parties is in the country of the court deciding the matter. According to Article 4(2) it happens either when “(a) the act of public participation concerning a matter of public interest against which court proceedings are initiated is relevant to more than one Member State” or (b) the claimant or associated entities have initiated concurrent or previous court proceedings against the same or associated defendants in another Member State.
Another important tool offered by the directive is the mechanism of early dismissal of manifestly unfounded cases. It would allow judges to dismiss at least some SLAPP cases at an early stage, making it less burdensome for victims who would not have to, in this case, go through lengthy proceedings. Even though it is worth noting that the word “manifestly” limits the number of cases that would be early dismissed and should be canceled in order to make the mechanism the most efficient, it is still a good step towards countering the issue of SLAPPs. The proposal also offers protection against third-country judgements – Member States are obliged to refuse the recognition of a non-EU country’s judgment if the case would be considered a SLAPP in the EU.
Additionally, the proposal offers measures such as: putting procedural costs on the claimant if the case is dismissed as abusive; compensation of damages to the target of SLAPP and dissuasive penalties. These tools are very important as to a huge extent the problem is created by the financial imbalance between parties. Making it potentially more equal by introducing such deterrent measures will have a positive effect on the situation of the SLAPP targets.
Overall, the proposed directive is a step into the right direction. In the shape proposed by the Commission it will offer a sensible set of measures that could counter at least some number of SLAPPs in the EU. What is also important – legally acknowledging the threat will help victims of SLAPPs with recognizing that the cases against them are not just defamation cases – which among journalists are considered harmful for their reputation when made public; but a planned harmful campaign.
The goal of keeping a strong directive
The proposal of the Swedish presidency of the Council on the changes to the proposed directive might be significantly harmful to the scope of protection offered to the victims. First of all, it suggested removing the definition of the “matters with cross–border implications”, which will lead to the lack of the guidance for a harmonized implementation of the directive. Another problem is a narrowed definition of “manifestly unfounded cases”. In that version the definition is so narrowed that current mechanisms that Member States have, such as the abuse of rights, would provide more help than the directive. The last significant suggested change is the removal of Article 15 on the compensation of damages and watering down other financial deterrents. The directive in this form would not guarantee expected changes and would not provide significant help to the victims. The so-called “Daphne’s law”, in the shape suggested by the Council, would not be able to help Daphne Caruana Galizia with the type of cases that were initiated against her back in the days.
At the same time, in March 2023, JURI presented a draft European Parliament Legislative Resolution. It seeks to extend the protection of SLAPP victims with tools among others: by clarifying the “abusive court proceedings against public participation” and “matters of public interest”; providing broader definition of matters with cross-border implications; creating a public EU register which would include all relevant SLAPP cases. The expected date for a plenary debate concerning the issue is 10 July 2023.
The future of countering SLAPPs in the EU
Hopefully, the fate of the directive will be positively decided soon and the pressure of the civil society will protect it from watering down. Nevertheless, the sole directive will not fully solve the threat of SLAPPs in the EU. There are at least a few important reasons for that. The first problem is the process of implementation – the Member States tend to be very slow and not fully efficient with implementing directives. It is important to keep the pressure from the civil society on the member states high during this process. Another important problem are SLAPPs based on criminal law and GDPR. The current directive focuses on civil law cases. It will be necessary in the future to introduce a directive focused on the criminal law SLAPPs and attuned the GDPR in a way to make it SLAPP abuse-proof.
The last, and perhaps trickiest issue when it comes to countering SLAPPs in the EU are SLAPPs in backsliding countries, i.e. Poland and Hungary. In both of them SLAPPs are used – also by the government or government-affiliated actors – mainly as tools to destroy independent media. According to some, Poland is currently one of the most SLAPP-affected country in the EU. In Poland, SLAPPS appear endemic to silence opposition voices, be it independent media in general or specific individual voices. To name just two examples, Gazeta Wyborcza, the biggest daily quality independent newspaper, currently litigates around 90 cases initiated by governing party politicians, states owned companies and Ministry of Justice among others. Further, professor Wojciech Sadurski, a distinguished professor of law at the Universities of Sydney and Warsaw, faced a number of cases as well. The problem of SLAPPs in Poland and Hungary and their impact on democracy will not be solved by any single EU directive. Even in an unlikely event of implementation there, the judicial system is not independent anymore, thus there is no guarantee of a fair trial. In order to successfully counter SLAPPs in the whole EU the rule of law has to be restored in all of its member states.
Milewska, Paulina: SLAPPs, Daphne’s Law, and the Future of Journalism: What is the state of the game?, VerfBlog, 2023/6/15, https://verfassungsblog.de/slapps-daphnes-law-and-the-future-of-journalism/, DOI: 10.17176/20230615-231225-0.