The powerful may know they won’t win in court — but they can certainly drain the resources of the news outlet doing work they don’t like along the way.
By PETER COE
A type of legal action is increasingly being used by powerful people to shut down criticism from activists, academics, whistleblowers, and journalists. This is known as a strategic lawsuit against public participation, or SLAPP.
At the time of her assassination in 2017, Maltese investigative journalist Daphne Caruana Galizia was facing 47 different civil and criminal libel suits, filed in various jurisdictions from Malta to the U.K. and the U.S.
And in Poland, the country’s second largest daily newspaper, Gazeta Wyborcza, has received over 55 legal threats since the Law and Justice party (PiS) came to power in 2015. The Polish cases are brought by powerful people with ties to the governing party, including the deputy prime minister and PiS chairman Jarosław Kaczyński.
SLAPPs are used to try to prevent the public from learning about matters of public interest that could harm the reputation of a company or government. They typically take the form of defamation lawsuits, but very often the companies or individuals who start these claims know they will never win. Rather, the aim of the claim (what makes it a SLAPP) is to dissuade journalists from reporting on a controversial story by making it as costly and time-consuming as possible.
People or organisations who instigate SLAPPs are often powerful and well funded, while defendants tend to be people and organizations with significantly less resources and influence. This is especially concerning when you consider that many independent journalists who bring attention to complex issues or scandals do not have the financial and legal support of a major media company behind them.
The effect of defamation complaints on freedom of speech in the U.K. is illustrated by recent comments by the website openDemocracy about a legal action pursued against them by Jeffery Donaldson, the current leader of the Democratic Unionist Party in Northern Ireland, over a story they published. “Those two years cost us a lot,” openDemocracy said. “We spent months dealing with legal letters, burning through thousands of pounds and precious time that would otherwise have been spent on our journalism. The psychological toll was even higher.” The case never went to court.
Even more worrying for the public is all the stories we don’t get to read about as a result of SLAPPs, such as the blocked U.K. publication of Karen Dawisha’s book Putin’s Kleptocracy.
In Canada and in some U.S. states, such as California, anti-SLAPP legislation and well-developed case law have existed for a number of years to restrict their deployment and protect free speech. In the European Union, and the U.K., where no such laws exist, the increasing use of SLAPPs has worried civil rights activists and journalists, and there are now attempts to introduce in similar legislation in both places.
Initiatives to monitor and combat SLAPPs are now being launched across Europe. For example, the Coalition Against SLAPPs in Europe, launched in March 2021, and saw 106 civil society organisations sign a public call for the Council of Europe to take steps to combat SLAPPs.
Another initiative launched in December 2020 is pushing for the adoption of a European Union directive to combat SLAPPs. And in June 2021, a study commissioned by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs recommended the adoption of an anti-SLAPP directive, and changes to EU law to limit the damage being done by SLAPPs.
SLAPPs have also reached U.K. shores. A November 2020 report from the Foreign Policy Centre, which surveyed European investigative journalists covering crime and corruption, found that the U.K. was by far the most frequent international country of origin for legal threats after the journalists’ home countries. The report also found that legal threats were more likely to effect the journalists’ ability to continue working than psychosocial, physical or digital threats.
In January 2021, the U.K. Anti-SLAPP Coalition was formed by 22 organizations. They recently published a joint policy paper countering legal intimidation and SLAPPs in the U.K. It calls for a formal U.K. parliamentary inquiry to examine this issue, including its effect on public debate and discussion, and to consider a U.K. anti-SLAPP law. According to the paper, such a law should have, among others, the following components:
- Quicker procedures for assessing the merits of the case, and for dispensing with it if it is doesn’t have substance.
- Cost sanctions for unsuccessful claimants, meaning that if the defendant is successful, they will be awarded full legal costs and, potentially, ‘increased’ damages.
SLAPPs pose a threat to democracy that we should all be concerned about.
