Freedom of expression: Europe tackles abusive lawsuits against public watchdogs
On 27 April, the European Commission proposed long-awaited measures to protect public watchdogs from meritless lawsuits targeting critical voices. The move has been welcomed following widespread concern over the use of Strategic Lawsuits Against Public Participation (SLAPPs) since the murder of Daphne Caruana Galizia in Malta in 2017. Following her death, it’s emerged that the investigative journalist was facing at least 47 of these vexatious lawsuits, which are frequently used as an intimidation tool by the rich and powerful to silence journalists, activists, critics and other public watchdogs.
The proposed directive would require all EU member states to make legal reforms to prevent cross-border SLAPPs in civil matters. The proposals seek to empower judges to dismiss ‘manifestly unfounded lawsuits’ against public watchdogs and order claimants to pay procedural costs, penalties and compensation.
At a press conference launching the initiative, Věra Jourová, the Commission’s Vice-President for Values and Transparency and former Commissioner for Justice, Consumers and Gender Equality, said: ‘This is the abuse of our justice systems and as a former Commissioner for the justice system I can say I don't like to see this.’ She said the proposals marked ‘decisive action’ by the Commission ‘to address the root causes’ and help ‘protect those who take risks and speak up when the public interest is at stake.’
Charlie Holt, legal counsel at Greenpeace International and UK campaign adviser to human rights NGO English Pen, has been raising awareness of the ‘chilling effect’ of SLAPPs for years, first in the US and, more recently through the Coalition Against SLAPPs in Europe. ‘SLAPPs are really designed to squeeze people out of the legal system, specifically the defendant,’ he says. ‘They are designed to be so heavy-handed, to be so aggressive that the defendant will feel they have no choice but to retract their speech, to apologise and to go home.’
Research published by the Coalition in March revealed that 570 lawsuits filed across 29 European jurisdictions between 2010 and 2021 qualified as SLAPPs. Holt says the Commission’s proposals will be crucial to outlawing this type of ‘abusive’ litigation across the region.
In the US, the prevalence of SLAPPs has also been growing steadily, says Dana Green, Senior Counsel at The New York Times, speaking in her capacity as Co-Chair of the IBA Media Law Committee. To date, 32 states and the District of Columbia have introduced so-called ‘anti-SLAPP’ laws to counter this trend.
SLAPPs are really designed to squeeze people out of the legal system, specifically the defendant
Legal counsel, Greenpeace International
This type of legislation has helped courts dismiss these ’meritless lawsuits’ quickly, says Green. It’s also enabled defendants to recover their attorney’s fees – a factor that is particularly significant in a market where litigants typically still pay their own legal fees even when they win a case.
Green believes these laws have succeeded in safeguarding both freedom of expression and access to justice. ‘I think the anti-SLAPPs we've seen enacted in the US are very much designed to strike that balance,’ she says. ‘The goal is to separate out the wheat from the chaff at an early stage of the litigation – not to block lawsuits that have genuine legal merit.’
However, the lack of legislation at the federal level has led to unpredictable results. ‘Unfortunately, there is no federal anti-SLAPP law and federal courts have sometimes rejected applying provisions of the state anti-SLAPP laws, so it's a pretty patchwork set of protections,’ she says.
This certainly supports the case for introducing EU-wide anti-SLAPP legislation. The Commission’s proposals crucially also provide protection for EU public watchdogs against SLAPPs initiated against them in third countries, such as the UK, which Holt says has become ‘not just a magnet for SLAPPs’ but ‘the primary originator of legal threats across Europe.’
A padlock dedicated to the murdered journalist Daphne Caruana Galizia on a fence in the centre of Valletta, Malta. Raymond/AdobeStock.com
This view is supported by research by the Foreign Policy Centre and ARTICLE 19, which identified the UK as ‘the most frequent country of origin’ for foreign legal threats against investigative journalists.
Recent high-profile cases brought by wealthy individuals against UK journalists – from Financial Times' Tom Burgis, The Guardian’s Carole Cadwallader, Bellingcat founder Eliot Higgins to former Financial Times Moscow Correspondent Catherine Belton – have underscored the extent of the problem in the UK.
Susan Coughtrie, Project Director at the Foreign Policy Centre, says the fallout from the war in Ukraine has exposed the role of UK lawyers in facilitating corruption, including their involvement in bringing abusive lawsuits. ‘It’s put a spotlight on lawyers who may well say they're following what they believe to be within the bounds of the law,’ she says. ‘The recent war has really started to question what the ethics are of that and that maybe this is something that we really need to look at more closely.’
Since the invasion, London has attracted mounting criticism for acting as a hub for ‘dirty money’ and leaving its legal system open to abuse by the rich and powerful. Gill Phillips, Director of Editorial Legal Services at The Guardian, says the war has also renewed pertinent questions about the jurisdictional basis of many oligarchs’ claims.
‘What’s happened is the reforms that were introduced in the 2013 Defamation Act did go some way to limiting some forms of libel tourism, but they haven't really dealt properly with two things,’ she says. ‘One is foreign claimants suing foreign defendants in the UK. Then there's a secondary issue of foreign claimants who may not have very strong links with the UK suing over here.’
The UK government launched a consultation on legislative proposals to tackle SLAPPs which closed on 23 May. The Solicitors Regulation Authority in England and Wales also recently warned the legal profession of the dangers of ‘making allegations without merit where the sole purpose is to stifle valid public discourse.’
Phillips welcomes these developments, but warns that legal claims are just the ‘tip of the iceberg’ of this issue in both the UK and further afield. ‘Underneath that is an enormous amount of pre-publication threat and communication, and how much of that actually does stop people going forward is very hard to quantify.’
Image credit: Siam/AdobeStock.com