Europe: End gag lawsuits and protect democracy and fundamental rights

Europe: End gag lawsuits and protect democracy and fundamental rights -

The problem: gag lawsuits against public interest defenders

The EU must end gag lawsuits used to silence individuals and organisations that hold those in positions
of power to account. Strategic Lawsuits Against Public Participation (SLAPP) are lawsuits brought
forward by powerful actors (e.g. companies, public officials in their private capacity, high profile
persons) to harass and silence those speaking out in the public interest. Typical victims are those with
a watchdog role, for instance: journalists, activists, informal associations, academics, trade unions,
media organisations and civil society organisations.

Recent examples of SLAPPs include PayPal suing SumOfUs for a peaceful protest outside PayPal’s
German headquarters; co-owners of Malta’s Satabank suing blogger Manuel Delia for a blog post
denouncing money laundering at Satabank; and Bollore Group suing Sherpa and ReAct in France to
stop them from reporting human rights abuses in Cameroon. In Italy more than 6,000 or two-thirds of
defamation lawsuits filed against journalists and media outlets annually are dismissed as meritless by
a judge. When Maltese journalist Daphne Caruana Galizia was brutally killed, there were 47 SLAPPs
pending against her.

SLAPPs are a threat to the EU legal order, and, in particular:

● A threat to democracy and fundamental rights. The EU is founded on the rule of law and
respect for human rights. SLAPPs impair the right to freedom of expression, to public
participation and to assembly of those who speak out in the public interest, and have a chilling
effect on the exercise of these rights by the community at large.

● A threat to access to justice and judicial cooperation. Cross-border judicial cooperation relies
on the principles of effective access to justice across the Union and mutual trust between legal
systems. That trust must be based on the legally enforceable upholding of common values and
minimum standards. To the extent that they distort and abuse the system of civil law remedies,
SLAPPs undermine the mutual trust between EU legal systems: member states must be
confident that rulings issued by other member states’ courts are not the result of abusive legal
strategies and are adopted as the outcome of genuine proceedings.

● A threat to the enforcement of EU law, including in connection to the internal market and
the protection of the EU budget. The effective enforcement of EU law, including the proper
functioning of the internal market, depends on the scrutiny of the behaviour of individual
entities by the EU, member states and – crucially – informed individuals. Watchdogs, be it
media or civil society actors, play a key enforcement role. Therefore, the absence of a system
which safeguards public scrutiny is a threat to the enforcement of EU law. The same reasoning
applies to the management of EU programmes and budget, which cannot be monitored
through the sole vigilance of the European Commission.

● A threat to freedom of movement. The absence of rules to protect watchdogs from SLAPP has
an impact on the exercise of the Treaty’s fundamental freedoms, since it affects the ability of
media, civil society organisations and information services providers to confidently operate in
jurisdictions where the risk of SLAPPs is higher, and discourages people from working for
organisations where they can be the target of SLAPPs.
Ending Gag Lawsuits in Europe – Protecting Democracy and Fundamental Rights 2

The solution: an EU set of anti-SLAPP measures

The EU can and must end SLAPPs by adopting the following complementary measures to protect all
those affected by SLAPPs:

1. An anti-SLAPP directive

An anti-SLAPP directive is needed to establish a Union-wide minimum standard of protection
against SLAPPs, by introducing exemplary sanctions to be applied to claimants bringing abusive
lawsuits, procedural safeguards for SLAPP victims, including special motions to contest the
admissibility of certain claims and/or rules making the burden shifting to the plaintiff to
demonstrate a reasonable probability of succeeding in such claims, as well as other types of
preventive measures. The Whistle-Blower Directive sets an important precedent protecting
those who report a breach of Union law in a work-related context. Now the EU must ensure a
high standard of protection against gag lawsuits for everyone who speaks out – irrespective of
the form and the context – in the public interest.
The legal basis for an anti-SLAPP directive is to be found in multiple provisions of the Treaty;
for example, Article 114 TFEU on the proper functioning of the internal market, Article 81 TFEU
on judicial cooperation and effective access to justice and Article 325 TFEU on combating fraud
related to EU programmes and budgets.

2. The reform of Brussels I and Rome II Regulations

Brussels I Regulation (recast) contains rules which grant claimants the ability to choose where
to make a claim. This must be amended to end forum shopping in defamation cases, which
forces defendants to hire and pay for defence in countries whose legal systems are unknown
to them and where they are not based. This is beyond the means of most and falls foul of the
principles of fair trial and equality of arms.
Rome II Regulation does not regulate which national law will apply to a defamation case. This
allows claimants to select the most favourable substantive law and therefore leads to a race to
the bottom. Today, victims may be subject to the lowest standard of freedom of expression
applicable to their case.

3. Support all victims of SLAPPs

Funds are needed to morally and financially support all victims of SLAPPs, especially with legal
defence. Justice Programme funds should be used to train judges and practitioners, and a
system to publicly name and shame the companies that engage in SLAPPs, for example in an
EU register, should be created.
Finally, the EU must ensure that the scope of anti-SLAPP measures include everybody affected by
SLAPPs, including journalists, activists, trade unionists, academics, digital security researchers, human
rights defenders, media and civil society organisations, among others.

Read the paper signed by 119 NGOs and organizations