SLAPP (Strategic Lawsuits Against Public Participation) attacks, i.e. legal harassment and lawsuits aimed at forcing a journalist, activist or scientist to stop reporting on a subject that is embarrassing for the powerful, have become monstrous in Europe.
Social organizations that have participated in the work on anti-SLAPP solutions have documented cases from all over Europe: Bulgaria, Croatia, Slovenia, Italy and France. From Poland – there are examples from Gazeta Wyborcza, OKO.press and Tomasz Piątek. However, the authors of the reports say this is just the tip of the iceberg, as SLAPP cases go unrecorded and the public is unaware that the case is a symptom of the gangrene that affects Europe.
We wrote about the reports here:
The godmother of the anti-SLAPP Union law is Maltese journalist Daphne Caruana Galizia, who was murdered in 2017. At the time of her death, she had 47 SLAPP cases before the courts for describing embezzlement in her country. For this reason, she also died.
“We were working on this project on behalf of Daphne and I felt Daphne was working with us. I wanted the new law to bear his name. It didn’t happen, but I think informally you can talk about Almost Daphne“- said at Thursday’s press conference in Brussels, the initiator of the project on behalf of the European Commission, the Vice-President of the Commission, Vĕra Jourová.
Next to her sat Mathew Caruana Galizia, son of the murdered investigative journalist and director of the Daphne Caruana Galizia Foundation. It was this foundation, together with other non-governmental organizations, that lobbied the European Commission and helped it develop anti-SLAPP solutions.
The “Daphne Law” is the product of an analysis of social changes in Europe: defamation laws were intended to protect people from attacks by powerful media corporations. But now the media is weak and business is getting stronger.
Moreover, companies that make money, for example in the energy market or food production, have cross-border interests – so it is easy for them to attack across borders. So people don’t just deal with the law of their country. Defense costs and time spent on defense increase.
The modes of social communication are also changing:
“The reason for today’s SLAPP attack may not only be media coverage, but also a protest or poster campaign,” Greenpeace’s Charlie Holt said at the press conference.
“It’s David’s fight against Goliath. We have to make it a little fairer,” stressed Jourová.
Penalties for cross-border SLAPPs
The proposed directive is limited only to specific cases, but the most serious: when a journalist/activist/scientist is sued in a court of another country. Inside or outside the EU. This is the case when the aggressor chooses the legal system in which it will be the easiest to crush the victim. The defense in such a case is extremely expensive and time-consuming.
In cross-border civil cases, it will be possible to assess at an early stage whether there is SLAPP. In such a case, the court could:
- dismiss the case (it is up to the complainant to prove that the allegations are well-documented and not intended solely to harass),
- compel the plaintiff in a SLAPP case to bear all legal costs,
- order compensation for a SLAPP victim (also for mental losses),
- impose an additional fine for abuse of the right to harass citizens,
- refuse to recognize the judgment of a court in a third country if it is a SLAPP case. These include cases brought against Europeans in UK courts – local law and procedure are extremely favorable to SLAPPs.
The directive is intended to have a deterrent effect. Therefore, once it has been adopted by the European Parliament and the Council (ie the Member States), it will apply to pending cases. This will work in the event of an attack by Russian oligarchs or big business on the media, but also if a Belgian anti-vaccine worker sues a Dutch scientist in Belgium.
However, if the Dutchman’s Belgian anti-vaccine agent chooses the Dutch court – not anymore.
It sounds like a major flaw in the system, but Jourová explains that the last thing we might want is a separate anti-SLAPP law in each EU country. And with the current level of awareness of the problem, the adoption of a uniform European law does not seem possible.
The law will not help without active citizens
“Member states are not prepared for SLAPP-like abuses,” Jourová said.
It seems to be betting on a social process that will change reality.
Thus, alongside the directive, there will be recommendations. The Commission will recommend Member States to abandon criminal proceedings in defamation proceedings (such a possibility exists in almost all Member States), or at least to abandon imprisonment for defamation. Member countries will also be required to report SLAPP cases at home – from 2023.
Another way to stop SLAPPs should be to make public the names of lawyers involved in SLAPPs on the abuser’s side.
Of course, it is hard to imagine that our Polish government, the government of Morawiecki, Ziobro and Kaczyński, will implement these recommendations and waive article 212 of the criminal code, which allows them to be imprisoned for defamation (demands the lifting of this provision remained unanswered for years). It is even more difficult to imagine how our ministers describe to the European Commission the procedure of harassment of citizens by their police and prosecutors as well as the prosecution of journalists and activists by the TVP they subordinate.
But as with mandatory government reporting on Poland’s implementation of the UN convention, a natural response from civil society might be to submit its own reports.
At OKO.press, since 2020, as part of the TARGETING project, we have been documenting the harassment of the authorities against activists. This is a small part of what is happening in the country, but we have already managed to show what characterizes the “Polish SLAPP” (here the whole state apparatus is used to attack – from the police to the propaganda), as well as how Polish civil society defends itself against it – through free legal assistance provided by lawyers, as well as by making connections, organizing support for those under attack and sharing knowledge about how to behave when the state attacks you.
The Polish example can become important for Europe, because in our country the target of the attack is not selected individuals, but dozens of citizens involved in public affairs.
Jourová assumes that the most important work on the directive will be completed by the end of the year. As she says, perhaps it will be easier for her, as a Czech woman, to encourage the Czech Presidency to work on the project. The Czechs take over the presidency of the Union after the French – from July.