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The Concerns Strategic Lawsuits Against Public Participation (SLAPPs) Pose to Free Speech

February 12, 2021

NGOs and human rights defenders are increasingly found as the targets of a new strategy designed to limit the speech of those with less power or resources. Strategic Lawsuits Against Public Participation (SLAPPs) refers to a process by which litigants target the defendants with what are usually frivolous defamation lawsuits. Although anti-SLAPP statutes, such as measures that provide for early dismissal of frivolous suits, can provide some safeguards against SLAPPs, many jurisdictions have yet to implement such statutes. SLAPPs also pose a threat to freedom of expression for many human rights defenders and civil society.

SLAPPs are a form of “lawfare,” a tactic that involves “legal strategies such as litigation and engaging with human rights bodies at national, European and international level[s].” Lawfare can also include leadership infiltration. SLAPPs, defined as lawsuits targeting those who communicate with the government or speak out on issues of public interest, have increasingly emerged as a prominent subcategory of lawfare. Such lawsuits are used as a means to silence and harass critics by forcing them to face the prospect of a lengthy, expensive court case. Even though these suits are usually meritless, they can be very effective because defending such suits requires a lot of resources, which non-profit organizations do not always have.

Litigants of SLAPPs usually sue under claims of defamation, though litigants have also sued under claims of interference with contract or economic advantage (in reference to supposedly harming the plaintiff’s business relationship with a third party), intentional infliction of emotional distress, and conspiracy. The Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association has also described the use of the U.S. Racketeering Influenced and Corrupt Corporations Act (RICO) law to “intimidate advocacy groups and activists by enabling corporations to smear these groups as “criminal enterprises” while claiming exorbitant damages.” Defamation is also a criminal offense in most EU member states, meaning that defendants in SLAPP cases may also face the prospect of criminal penalties.

Though it is hard to officially define a SLAPP case, a report commissioned by the European Union lists the following common features: the presence of the “speaker” (e.g., a human rights defender), public interest in the speaker’s content, the “chilling effect,” the intent to intimidate, vertical power relationship between the speaker and the litigant, exaggerated damages claims, and meritless claims. There are also multiple factors that influence how easily SLAPPs can be used in different jurisdictions. Such factors include the cost of legal fees, the elasticity or ambiguity in laws targeting speech, and the existence of safeguards such as anti-SLAPP statutes or cost awards against abuse of process.

1. Protecting Against SLAPPs

There are varied approaches to combatting SLAPPs. In individual cases, sources recommend quickly dismissing the case and taking measures to recover attorney fees and other costs. Other recommendations include diligent fact-checking, obtaining insurance, and exploring options for legal representation. To a large extent, the ability to protect against SLAPPs depends on whether different domestic legal contexts have anti-SLAPP laws. Anti-SLAPP statutes generally allow for an early dismissal of SLAPP suits, reimburse the defendant for any costs, and include measures penalizing abuse of the legal system. The European Centre for Press & Media Freedom notes the difficulty in writing anti-SLAPP statutes without making it overly difficult to pursue legitimate defamation claims.

The availability of anti-SLAPP statutes greatly varies depending on the legal context. Australia, Canada, and the United States are among the jurisdictions with more highly developed anti-SLAPP statutes. Twenty-six states in the United States and one U.S. territory have anti-SLAPP statues. There are no European Union member states, however, that have anti-SLAPP statutes on the books. Some individuals surmise that the difference in the availability of anti-SLAPP statutes is linked to the different ways that legal systems address free speech. Free speech in the United States, although restricted in various contexts, is viewed in more absolute terms. The European Convention on Human Rights, however, more explicitly balances free speech with other rights such as reputation. This balancing of free speech and reputation facilitates a slightly larger window of protection against defamation, thus creating more of a window for SLAPP suits.

Recognizing the dangers that SLAPPs pose to free speech, many European NGOs and others have called for a more robust, harmonized legal framework in Europe to protect against SLAPPs. The nature of online media allows for the same material to be available in numerous jurisdictions, which opens the door for litigants to sue in more favorable jurisdictions by claiming that the alleged damage occurred in a location with limited anti-SLAPP protections. This process, known as “forum shopping,” puts the defendant at risk of being sued even if they reside in an area with stronger anti-SLAPP protections. There have been some attempts to regulate this process, but there still exists flexibility within the European legal system to choose a more favorable jurisdiction. Recognizing this trend, over 60 organizations, including D.i.Re, the Association of European Journalists, the Centre for Peace Studies, and the Guardian News and Media Limited, have signed onto a proposal for the European Union to adopt an anti-SLAPPs law. Among other provisions, this draft law includes measures providing for early dismissal of “abusive lawsuits” and awarding financial compensation to the defendants in these cases.

2. SLAPPs in the International System

There is a growing recognition of the problem that SLAPPs pose to free speech as protected under numerous international mechanisms. Annalisa Ciampi, the Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association, contextualizes SLAPPs within the broader human rights framework. Ciampi also notes the prominence of rights to expression, peaceful assembly, and association in Articles 19 and 20 of the Universal Declaration of Human Rights and in Articles 19 –?21 of the International Covenant on Civil and Political Rights. Although restrictions on speech are permitted, Ciampi writes that they only may occur in “the interests of national security or public safety, public order (ordre public),” and in the “protection of public health or morals or the protection of the rights and freedoms of others.”

There are standards within human rights treaties and from UN Special Procedures that can proffer protection against SLAPPs. In General Comment No. 24 (2017), the International Committee on Economic, Social, and Cultural Rights discussed the obligations states have to protect individuals from interference by third parties. A joint report from the Special Rapporteur on the rights to freedom of peaceful assembly and of association and the Special Rapporteur on extrajudicial, summary or arbitrary executions found that “states have an obligation to ensure due process and to protect people from civil actions that lack merit.” The Working Group on Business and Human Rights also recommended that states enact anti-SLAPP legislation as a way of protecting human rights defenders.

In addition to state responsibility to protect against SLAPPs, the private sector also has a responsibility to protect free expression. The International Committee on Economic, Social, and Cultural Rights has placed a responsibility on business entities to “exercise human rights due diligence in order to identify, prevent and mitigate the risks of violations of Covenant rights.” Additionally, the UN Guiding Principles on Business and Human Rights recognize the obligations that private actors have to protect rights.

Caselaw from the European Court on Human Rights (ECtHR) also provides further guidance against SLAPPs. In Handyside v. United Kingdom (1976), the Court recognized that “democratic society should tolerate ideas that offend, shock or disturb the State or any sector of the population”. The case Steel Morris v. United Kingdom (2005) involved two members of London Greenpeace who were required to pay McDonald’s 40,000 euros for damaging the company’s reputation by publishing a pamphlet titled “What’s wrong with McDonald’s?” The ECtHR found that the United Kingdom violated the European Convention on Human Rights by not providing legal aid to low-income individuals against a wealthy company such as McDonald’s.

3. Examples of SLAPPs

There are many examples that illustrate how actors have used these lawsuits to constrain the work of activists, human rights defenders, journalists, and NGOs. In addition to defamation suits, many individuals have been targeted with criminal sanctions. Between 2015 and 2019, more than 170 people providing humanitarian assistance to migrants have been charged with “facilitation of illegal entry.” Those prosecuted under this charge include journalists, filmmakers, people involved with faith-based organizations, and individuals from organizations such as Medecins Sans Frontieres and Save the Children. While these charges are a departure from civil defamation suits that tend to characterize SLAPPs, they do represent an attempt to leverage legal power to inhibit the actions of NGOs and human rights defenders. Included are additional examples of SLAPPs in various legal jurisdictions.

i. Maltese Journalist Daphne Caruana Galizia

Maltese Journalist Daphne Caruana Galizia reported extensively on local corruption, including a report on a secret Panama-based companies tied to Maltese politicians. Caruana Galizia was assassinated on October 16th, 2017 in a bombing. At the time of her death, Caruana Galizia was facing 47 lawsuits. In addition to an outcry in Malta, the assassination of Daphne Caruana Galizia drew much international attention. In response to her assassination, a group of members of the European Parliament called for the EU Commission to promote an anti-SLAPP EU directive.

ii. Fortify Rights NGO in Thailand

Thammakaset Limited Company filed criminal complaints under grounds of defamation and libel against two staff members from the NGO Fortify Rights after the staff members made comments critical of the company in a press conference. Both staff members were eventually acquitted in this criminal defamation case. This case occurs within a broader trend of SLAPP actions from Thammakaset Limited Company, filing 38 criminal or civil complaints against 22 people over the last four years. New anti-SLAPP measures in Thailand likely aided the acquittals, including provisions giving the courts “power to dismiss cases filed by private parties with the intention to ‘harass or take undue advantage of a defendant, or to procure any advantage to which the complainant is not rightfully entitled’” and allowing defendants to “submit evidence during a preliminary hearing showing that a case ‘lacks merit.’” Progress has been made, but the article recommends that Thailand take steps to decriminalize defamation.

iii. SLAPPs in France

A series of lawsuits initiated by private companies in further illustrate the extent to which SLAPP actions appear in the European system. Two private companies, Socfin and Socapalm, initiated suits against three newspapers and two NGOs for defamation. These lawsuits stemmed from reporting by the newspapers and NGOs on villagers and farmers in Cameroon who accused the companies of exploiting their land. Similar to the Thammakaset Limited Company in Thailand, Socafin and Socapalm are no strangers to SLAPPs, having filed over 20 similar lawsuits since 2009. The protest group Attac France was the subject of a lawsuit from Apple after organizing a sit-in an Apple store to protest what they believed to be “massive tax evasion” by Apple. Though the court acknowledged that such protests should allow customers to have free access to the stores, it disagreed with claims from Apple that the activists created “imminent damage” to its stores products, and clients.

iv. Impact of SLAPPs

In addition to those directly targeted in SLAPPs, these actions also impact the broader society. The Special Rapporteur on the situation of human rights defenders wrote that “these patterns not only endanger the physical integrity and undermine the work of human rights defenders, but also impose a climate of fear and send an intimidating message to society at large.” This climate of fear has broad impacts on political institutions, and one report recognizes the impact SLAPPs has on democratic participation. In addition to the climate of fear that inhibits democratic participation, legal actions that intimidate free speech also limit the ability of the public to access to information necessary to participate in democratic processes. Despite a growing recognition of the impact of SLAPPs and the implementation of anti-SLAPP measures in various legal contexts, SLAPPs continue to pose a grave problem to free expression.

By Carter Mickelson, Program Assistant, International Justice and Women’s Human Rights Programs