HRHF welcomes Council of Europe initiatives against SLAPPs

SLAPPs are abusive lawsuits filed by powerful individuals and companies to silence their critics by tying them up in costly and time-consuming litigation. Specific anti-SLAPP laws have been adopted in some jurisdictions, though to date this does not include any European country.

In March 2021, 103 organisations signed a statement urging the CoE to issue guidance to its member States on how to combat SLAPPs. The statement, drawn up by CASE members, highlighted a growing body of evidence [1] that SLAPPs are on the rise across the continent, and are having a devastating impact on freedom of expression. The 103 groups represent a range of public watchdogs affected by SLAPPs, including journalists and media outlets, rights defenders and activists, non-governmental organisations (NGOs), lawyers, trade unions, workers’ representatives, scholars and whistleblowers. The statement was accompanied by a memorandum that sets out the case for the CoE to act in more detail.

A year on, a range of bodies and meetings within the CoE have acknowledged the problem and the need to address it [2], and initiatives are underway in the CoE’s two statutory bodies, the Committee of Ministers (CM) and the Parliamentary Assembly of the CoE (PACE).

In November 2021, the CM, which is made up of the foreign ministers of each of the 46 member States, decided to establish a Committee of Experts on SLAPPs and task it with drafting a Recommendation on SLAPPs by the end of 2023. The Committee includes seven representatives of member States and six independent experts. Once drafted, the Recommendation will be considered for adoption by the CM.

Meanwhile, a motion has been tabled that could lead to the adoption of a resolution on SLAPPs by PACE, which consists of members of the national parliaments of the 46 member States. The motion, advanced by the PACE Committee on Culture, Science, Education and Media, states: ‘it is high time for the European countries to put in place efficient anti-SLAPP measures’. It is expected that a report on SLAPPs and the problems they pose will be prepared and a rapporteur will be appointed. If adopted by the Committee, the report will be considered by the plenary Assembly, which may then issue a resolution on the topic.

Strong recommendations from the CM and PACE could set European countries on the right path to combatting the scourge of SLAPPs, and help raise the ambitions of EU member states when they implement the Brussels’ package of anti-SLAPP measures, due to be unveiled shortly. CASE calls for the inclusion of the following key elements in these recommendations: a procedure enabling courts to dismiss SLAPPs at an early stage; sanctions for those who use SLAPPs or threaten to do so; financial and legal support mechanisms for those targeted by SLAPPs; and steps to prevent the use of ‘forum shopping’, whereby SLAPPs are deliberately brought in a jurisdiction that is inconvenient and expensive for the defendant and has only a weak connection to the case.

CASE member organisations will continue to engage with the discussions underway at the CoE and will advocate for robust standards against SLAPPs.

NOTES

[1] Reports documenting the increase in SLAPPs in Europe have been published by the ECPMF, Greenpeace EU, Index on Censorship, ARTICLE 19 and CASE.

[2]  Before the statement by 103 organisations, the CoE’s Commissioner for Human Rights had already published a Human Rights Comment recognising SLAPPs as a ‘long-standing problem … that has been increasing in magnitude’ and suggesting the CoE could play a role in tackling it.

More recently, the CoE Secretary General’s 2021 report noted that ‘the abuse of civil lawsuits to silence critical voices is a growing concern’. A June 2021 resolution adopted by the member States’ ministers responsible for media and information society similarly mentions SLAPPs as a threat to journalists and other media actors, and stresses the duty of states to protect the ‘physical and psychological integrity of all individuals within their jurisdiction’.

There have been several cases before the European Court of Human Rights addressing the problems associated with SLAPPs. Its case law establishes important standards, outlined in the memorandum, on the need for CoE actions against SLAPPs drafted by CASE members. The recent judgment in the case of OOO Memo v. Russia signals a ‘growing awareness of the risks that court proceedings instituted with a view to limiting public participation bring for democracy’ and cites the above-mentioned Human Rights Comment by the Commissioner for Human Rights.