Back to main site

    Strategic Litigation Against Public Participation

    Module 7: Defamation and Reputation

    SLAPP Suits

    Other legal methods are also increasingly used to silence critics and journalists. One such example is Strategic Lawsuits Against Public Participation (SLAPP), which aim to intentionally bury critics under expensive and often baseless legal claims to intimidate and silence them. Usually, the objective in these cases is not a positive judgment, but rather to leverage the threat of financial damage — typically against persons and organisations that cannot reasonably pay for the damages sought in the lawsuit. Libel and defamation are often used as the underlying complaints in SLAPP suits. In Europe, the number of SLAPP suits has been steadily rising in recent years, reaching 161 in 2022.(1)

    In acknowledging these risks, in 2023, the Legal Affairs Committee of the European Parliament voted in support of new rules designed to ensure EU-wide safeguards against unjustified SLAPP suits, building on a series of existing resolutions aimed at preventing the legal harassment of journalists and activists.(2) This included broadening the definition of cross-border cases to include situations where the subject matter of the case is pertinent to more than one country and can be accessed electronically.(3) It also builds on the European Commission’s existing recommendations for domestic cases that particularly address legal support for those targeted.

    The proposed measures include the option for those targeted by a SLAPP to seek early dismissal of their case, placing the burden of proof on the claimant to demonstrate that their case is not blatantly unfounded.(4) Claimants would also be responsible for covering all legal expenses, while victims of SLAPPs would have the right to seek compensation for damages, including harm to their reputation and defamation cases would only be admissible in the defendant’s national court.(5) On 30 November 2023, the EU Council and Parliament agreed on and passed the new directive.(6)

    The rise of anti-SLAPP laws

    Several countries around the world have sought to address the surge of SLAPP suits against journalists and activists by passing dedicated anti-SLAPP legislation. This includes, for example, the United States, Australia, and Canada.(7) As the Reporters Committee for Freedom of the Press states:(8)  

    Under most anti-SLAPP statutes, the person sued makes a motion to strike the case because it involves speech on a matter of public concern. The plaintiff then has the burden of showing a probability that they will prevail in the suit — meaning they must show that they have evidence that could result in a favorable verdict. If the plaintiff cannot meet this burden and the suit is dismissed through anti-SLAPP proceedings, many statutes allow defendants to collect attorney’s fees from the plaintiff.  

    In 2023, the UK also introduced an anti-SLAPP law giving judges the power to dismiss lawsuits they deem to be attempting to silence those speaking out justifiably on economic crime.(9) The law defines what constitutes a SLAPP and provides a cost protection scheme for cases that proceed. However, it is limited only to those covering economic crimes.  

    International human rights bodies have also increasingly begun to recognise SLAPPs. For example, the 2022 UN Human Rights Council Resolution on the safety of journalists made commitments acknowledging the growing risks of SLAPPs and called on governments to “take measures to protect journalists and media workers from strategic lawsuits against public participation, where appropriate, including by adopting laws and policies that prevent and/or alleviate such cases and provide support to victims.”(10) This has also been recognised by several reports of the special mandates.(11)

    The ECtHR has made some progress toward recognising SLAPPs, including in the case of OOO Memo v Russia (2022), in which it explicitly referred to “the growing awareness of the risks that court proceedings instituted with a view to limiting public participation bring for democracy.”

    Insult Laws

    Insult laws aim to safeguard the “esteem and character” of individuals, even public officials, and are, unlike defamation laws, usually oblivious to whether the statements are true.(12) Several insult laws are still at play across the continent and continue to pose risks for journalists and others critical of the government. Poland stands out as a country in which insult cases remain common, while across the rest of the continent they are rare despite remaining laws which often aim to protect heads of state.(13)

    Regional courts have increasingly argued that public officials should enjoy less protection from criticism than others. Because of their status, access to the media, and power, public officials can often use their office to try to curtail freedom of expression and prosecute critics.(14) Additional protections for those who criticise them may therefore be warranted, to counter this imbalance of power. In addition, there is a real need for those serving in public office to be open to criticism and public input. As the ECtHR has found in Oberschlick v Austria (1997):

    A politician inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must display a greater degree of tolerance, especially when he himself makes public statements that are susceptible of criticism.(15)

    The Office of the High Commissioner for Human Rights (OHCHR) has also called for the abolition of the offence of “defamation of the State,”(16) and some jurisdictions have refused to allow elected and other public authorities to sue for defamation.(17) The ECtHR has limited such suits to situations which threaten public order, implying that governments cannot sue in defamation simply to protect their honour.(18)

    Abuse of process

    Lastly, those seeking to silence critics and journalists may abuse court processes to meet their objectives.(19) Even when the legal framework does not offer specific safeguards against SLAPPs, there may be other legal mechanisms available for dismissing such cases.(20) These mechanisms could include provisions addressing the “abuse of process” or prohibiting frivolous litigation.(21) Some courts have started to entertain defendants’ requests for case dismissals using these provisions, although their application has been inconsistent.(22)

    Practical steps on defamation

    If you have been a victim or survivor of the non-consensual distribution of intimate images, you may be able to use defamation as a remedy.

    • If you are able to show that the distribution of the images harmed your reputation, you may have success in a defamation case.
    • The challenge with using civil defamation as a remedy is that the images may technically be ‘true,’ or even taken with the victim’s consent. However, if it can be shown that there existed an associated implication about the subject of the images (e.g. that reflects on their character) which can be proven false, a defamation claim is more likely to have success.   ·       

    If someone has posted slanderous comments about you online, and you are also a user of the same social media platform, you may have recourse with that social media company.

    • Most social media companies have defamation reporting processes,(23) which may enable you to have the comments taken down. However, they are unlikely to provide further recourse beyond removing the offending content.   ·       

    If you have been targeted by a SLAPP suit that uses defamation charges to silence or intimidate you may:

    • Approach a reputable public interest law firm or human rights lawyers for assistance. Sometimes, lawyers may be able to act pro bono (free of charge) or rely on legal defence funds for their fees.  

    If you live in a country that has defamation laws that infringe on regional and international human rights, you may be able to do something about it:   

    • Consider whether you have access to other regional or international human rights courts, such as the European Court of Human Rights or the Court of Justice of the European Union. There may be jurisprudence in your country opposing the use of disproportionate penalties for defamation.  

    Footnotes

    1. The CASE, ‘SLAPPs,’ (accessible at https://www.the-case.eu/slapps/). Back
    2. European Parliament, ‘Anti-SLAPP: EU protection against legal actions that silence critical voices’ 27 June 2023 (accessible at https://www.europarl.europa.eu/news/en/press-room/20230626IPR00818/anti-slapp-eu-protection-against-legal-actions-that-silence-critical-voices).at p. 64. Back
    3. Id. Back
    4. Above n 64 at p. 56. Back
    5. Id. Back
    6. Nathalie Weatherald, ‘EU institutions strike deal on Anti-SLAPP Directive,’ Euractiv (2023) (accessible at https://www.euractiv.com/section/media/news/eu-institutions-strike-deal-on-anti-slapp-directive/). Back
    7. Linda Maria Ravo and others, ‘Protecting Public Watchdogs Across the EU: A Proposal for an EU Anti-SLAPP Law,’ A call for action signed by multiple non-governmental organisations from across Europe (accessible at https://dq4n3btxmr8c9.cloudfront.net/files/zkecf9/Anti_SLAPP_Model_Directive.pdf). Back
    8. Reporters Committee for Freedom of the Press, ‘Understanding Anti-SLAPP law,’ (accessible at https://www.rcfp.org/resources/anti-slapp-laws/). Back
    9. Lucy Nash, ‘UK introduces first anti-SLAPP law – but critics say it doesn’t go far enough,’ The Bureau of Investigative Journalism (2023) (accessible at https://www.thebureauinvestigates.com/stories/2023-10-30/uk-introduces-first-anti-slapp-law-but-critics-say-it-doesnt-go-far-enough). Back
    10. A/HRC/RES/51/9 (accessible at https://digitallibrary.un.org/record/3992428?ln=en). Back
    11. Global Freedom of Expression: Columbia University, ‘How are courts responding to SLAPPs? Analysis of selected court decisions from across the globe,’ (2023) (accessible at https://globalfreedomofexpression.columbia.edu/wp-content/uploads/2023/04/GFoE-Article19-SLAPPs-paper.pdf) at p. 10. Back
    12. Joel Simon and others, ‘Weaponizing the Law: Attacks on Media Freedom’ (2023) at p. 16 (accessible at https://www.trust.org/documents/weaponizing-law-attacks-media-freedom-report-2023.pdf). Back
    13. Antonia Zimmerman, ‘European countries where insulting the head of state can land you in prison,’ Politico (2021) (accessible at https://www.politico.eu/article/european-countries-where-insulting-head-of-state-can-land-prison-belgium-denmark-france-germany/). Back
    14. Id. Back
    15. Application No. 11662/85 (1991) at para 59 (accessible at https://hudoc.echr.coe.int/eng?i=001-58044). Back
    16. OHCHR, Concluding Observations of the Human Rights Committee: Serbia and Montenegro, CCPR/CO/81/SEMO (12/08/2004) at para 22 (accessible at https://www.refworld.org/docid/42ce6cfe4.html). Back
    17. OHCHR, ‘Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression,’ E/CN.4/2000/63 (2000) (accessible at https://www.ohchr.org/en/issues/freedomopinion/pages/annual.aspx). Back
    18. Id. Back
    19. Global Freedom of Expression, ‘How are courts responding to SLAPPs? Analysis of selected court decisions from across the globe,’ (2023) (accessible at https://globalfreedomofexpression.columbia.edu/wp-content/uploads/2023/04/GFoE-Article19-SLAPPs-paper.pdf). Back
    20. Id. Back
    21. Above n 81. Back
    22. Id. Back
    23. For Facebook, see https://www.facebook.com/help/contact/233704034440069. For X (formerly ‘Twitter’), see https://help.twitter.com/en/forms/safety-and-sensitive-content/abuse. Back