Political Sentiments Are Changing Against SLAPP, but Do Anti-SLAPP Law Work?
By “Silenced by Lawsuits,” the anti-SLAPP research group at CMDS
Political sentiments are increasingly turning against Strategic Lawsuits Against Public Participation (SLAPP). SLAPPs, in a nutshell, are an abuse of statutory law, or a legal process to stifle critical speech. This use of legal means to stifle freedom of expression and public participation is widely perceived as a threat to democracy, in Europe and elsewhere. Institutions of justice come with a rigid level of formalism which has traditionally accepted to be a part and parcel of the troika of democracy, the rule of law and access to justice. Without a Statute to enable them, the judges may hesitate, opting to find merit in largely meritless claims rather than dismiss them outright. By proceeding in this manner, the judiciary conveys the impression that the value of access to courts is absolute, even if the right of public participation, which is the foundation of democracy, is hindered through abusive litigation techniques.
An anti-SLAPP law, generally speaking, restores this balance between the values of democracy and access to justice by providing for measures such as expedited hearings, reversing burden of proof, and providing for early dismissal of meritless claims.
The recent developments in Europe provide an interesting manifestation of the changing political sentiments towards an anti-SLAPP law. At the supranational level, the European Commission published a roadmap for a directive proposal and invited feedback from their citizens and other stakeholders. Alongside this initiative, the European Parliament adopted a resolution on Strengthening democracy, media freedom and pluralism in the EU and proposed a series of measures to counteract the threat of SLAPPs. The effects of these initiatives are percolating to other institutions and jurisdictions. The Organization for Security and Co-operation in Europe (OSCE) for example recently took note of the gravity of the problem. In their Report on Legal Harassment and Abuse of the Judicial System Against the Media, they recognize SLAPP as one form of legal harassment used against the media in the OSCE region and provide guidance and recommendations to the OSCE participating states. Support against the advent of this phenomenon has also been pledged by the new German coalition lead by Chancellor Olaf Schultz. In their coalition agreement, the parties pledged to support Europe-wide measures aimed at protection of rights and freedoms, such as the measures against SLAPPs.
These recent developments are a source of encouragement. More and more organizations are taking note of this phenomenon and are inching towards bringing an “Anti-SLAPP Law”. In the United Kingdom, the Anti-SLAPP working group launched its proposals for reform to counter SLAPPs in the UK and have initiated public consultations with a view to gather the opinions of experts to review how some existing statutory provisions have facilitated abuse of democratic means to silence critical voices.
Encouragement can also be taken at the general efficiency of the anti-SLAPP measures in trimming the lifespan of cases. The CMDS’s Anti-SLAPP team’s submission to the European Commission’s call for feedback highlights that. The research, based on a small sample of cases in some EU States illuminates that the average lifespan of a case (with the hallmarks of a SLAPP case) stands at roughly 1.89 years. In contrast to this, the average lifespan of a similar case in Canada & the US, which have some states with an anti-SLAPP law is roughly 0.76 years and 1.41 years respectively.
What needs to be noted from these figures is that even with a thin form of anti-SLAPP protection, these provisions have the potential to reduce the engineered conflict between the competing values of democracy and access to justice.
As SLAPPs are becoming an increasingly prevalent threat to freedom of expression and democratic participation in Europe, it is of utmost importance that the relevant actors recognize the severity of the issue and adequately address it.
“Silenced by Lawsuits” is an anti-SLAPP research group at CMDS, founded by Kateřina Krejčová, Raunaq Jaiswal, Feride Belma Bumin, Šejla Karić and Amparo Carrión Domenech. The group aims to study SLAPPs against journalists, academics, environmentalists, activists and civil society organizations in the Council of Europe region, the US, Canada and India, filed in 2015–2020. For more information, please visit the group’s page on our website.