Anti-SLAPP laws; what are they & why we need them

SLAPP suits (Strategic lawsuits/litigation against public participation) are in fashion as the latest tool of choice used to drain the limited resources of activists and journalists and financially intimidate them into silence.

There is a fine line between the right to free speech the right to reputation

There is a genuine case to be made against false defamation, however it’s far from the main concern of those filing SLAPP suits.

The plaintiffs of these lawsuits are usually large corporations, public figures, businessmen and high-ranking officials whose goal isn’t to win the case. Rather it is to launch a vexatious drain of the defendant’s time and resources in an attempt to scare them into submission and self-censor their work. Hence, it limits criticism, disables investigative journalism and stifles political expression.

These lawsuits are a global phenomenon which pose a threat to free speech and democracy as we know it.

A factor that makes these lawsuits particularly unnerving is the very obvious power struggle at play. Plaintiffs are often wealthy and practice forum shopping by purposely filing these lawsuits in foreign countries like the US or the UK ensuring extremely high legal fees to the defendants and more plaintiff-friendly outcomes by claiming to have read the article abroad.

Hence, a SLAPP victim like a small Maltese newspaper would be particularly at risk when being sued in, for example London; whilst a plaintiff like a wealthy buisness man could probably afford countless unnecessarily expensive SLAPP suits – it would effectively mean the end of the road for the publication.

In other words, SLAPP suits are an expensive way to bully those who have enough courage to report and speak out against often criminal and oppressive activity.

Hundreds of these lawsuits have been filled against journalists all over Europe. Among a few of the very notable cases is the SLAPP suit faced by British journalist Carole Cadwalladr. The journalist uncovered links between businessman Aaron Banks, the founder of Leave.EU, and Cambridge Analytica; she consequentially faced a SLAPP suit which may have potentially left her homeless and bankrupt.

Another case where a journalist was punished for speaking the truth is that of Maltese journalist Daphne Caruana Galizia. After her reports claimed that Pilatus Bank was guilty of processing corrupt payments to Maltese officials and money laundering, the bank attempted silencing her with a $40 million SLAPP suit filed in the US, to add to the other 40 libel cases she faced before her brutal car bomb assassination.

The journalist’s murder sent shockwaves throughout Europe and prompted Maltese MEP David Casa to lead a call for the introduction of an anti-SLAPP directive in the EU.

Besides additional research  on potential anti-SLAPP laws, measures that have been proposed include increasing the stakes of filing a SLAPP lawsuit by shifting the burden of proof from the defendant onto the plaintiffs in libel cases regarding,  making it easier and faster for judges to dismiss prima facie baseless cases ostensibly made to intimidate.

More concretely, the European Commission is currently funding several EU projects such as The European Centre for Press and Media Freedom which has introduced a Europe-wide Rapid Response Mechanism (RRM) which offers  practical legal help in cases of violations of press and media freedom, with a focus on online harassment, particularly the disproportionate attacks on female journalists as well as legal intimidation systems such as SLAPP suits, with the goal of fighting impunity and improving media freedom.

The disheartening thing about SLAPP suits is that they don’t only affect the defendants but scare many organisations into silence as they wouldn’t have a feasible way of affording the kind of legal defence required for a potential lawsuit.

This was made depressingly clear through the fact that after the Pilatus Bank case was made against the Maltese investigative journalist, other Maltese publications quietly began deleting their stories on the bank as to not endure the same fate.

Justin Borg Barthet, a senior lecturer at the University of Aberdeen and one of the main researchers on EU libel law reform chillingly described the above situation as “very much 1984: ‘The past was erased, the erasure was forgotten, the lie became the truth.”

Notably, after Daphne Caruana Galizia’s murder, the Pilatus Bank Iranian chairman and owner, Ali Sadr Hasheminejad, was charged in the US in connection with money-laundering and fraud.

However, SLAPP suits haunt the Caruana Galizia family to this day. Daphne Caruana Galizia’s son, journalist Matthew Caruana Galizia describes these libel suits as “a form of harassment to eat up your time, eat up your money,”, a “never-ending type of torture”.

If journalists are ostracized and spending their time and resources going in and out of court trying to defend their basic rights, how are we the public ever going to know the truth? How are journalists to feel safe doing their job and safeguarding our democracies?

Journalists aren’t the only victims; activists are targeted too. Environmental activist organisation Greenpeace was sued $900 million after a protest was held against the Dakota access pipeline. The plaintiffs, Energy Transfer Partners tried using mob and racketeering laws against them. Thankfully the case was seen for what it truly was and was dismissed. The dismissal sent a firm and clear message to corporations attempting to intimidate and silence activist groups.

Greenpeace has since set up the anti-SLAPP taskforce: Protect The Protest

Fortunately, strong anti-SLAPP laws exist in 29 US states, Australia and parts of Canada and have been proven to be effective. However, the EU is yet to see the enactment of such laws.

The UN too backs the enactment of anti-SLAPP legislation which would allow early dismissal of cases and sanction abuses. Ensuring due process and protecting people from civil action that lacks merit are among some of the advice given by the UN on what individual states are to do on the matter. The UN also advocates for the introduction of protections for assembly organisers and participants against frivolous lawsuits with the aim of chilling public participation.Overall, the UN highlights and encourages state’s obligations to further promote the exercise of the rights of freedom of expression, peaceful assembly, and association.

In conclusion, the proper enactment of anti-SLAPP legislation would protect journalists, activists and anyone else who wants to exercise their right to speak out against the actions of the powers that be, without fear of unfair, draining intimidation.