A SLAPP on the face of Information: The state of journalism in the EU.
Freedom of the media is a core element for a well-functioning democracy, but it should not be taken for granted. All across the EU, NGOs are calling politics and public opinion not to turn a blind eye to the latest worrisome trends. Covid-19, the spread of fake news and the use of SLAPPs are all challenges that journalists and media professionals are fighting right now. What kind of defence mechanisms has the EU planning to adopt to help them fight back?
Journalism under siege
During the 2021 address on the State of the Union, the President of the European Commission, Ursula von der Leyen, defined information as a public good and affirmed that media freedom is the one that gives voice to all our other freedoms. However, this voice might be at risk of becoming a deafening silence.
Over the past years, attacks on journalists in the European Union (EU) have soared. Daphne Caruana Galizia, Ján Kuciak, Peter de Vries, are among the latest victims of this violence against independent journalism. Without the freedom of the media, our democracies would not be the same, since only an informed public opinion can move closer to making conscious decisions. For this reason, protecting the life of journalists, and ensuring media freedom and access to information are vital elements for a clean bill of health for the Rule of Law of our Union.
Besides openly violent actions, attacks against the free press have taken more insidious forms. Particularly, Strategic Lawsuits Against Public Participation, or SLAPP, have been putting in danger not only the work but also the life of all those people that are committed to bringing the truth to light. Moreover, the breakout of the Covid-19 pandemic has only added further insult to the injury with the rise of distrust towards the media. In front of these challenges, the institutions cannot afford inaction since protecting journalists means protecting our democracy.
Journalism in the Time of Covid-19.
The situation in the EU for journalists is deteriorating. Since 2020, six Member States have worsened their press freedom index according to the NGO Reporters without Borders. This dramatic trend has also been noticed by the EU institutions. Based on data from the European Commission, in 2020, 908 journalists and media professionals have been attacked in 23 Member States. However, what is really worrying, is the number of journalists killed. Since 1992, 23 journalists were assassinated, the majority of the cases happened over the past six years. In this stark trend, the breakout of the Covid-19 pandemic has worsened an already tense environment.
The 2021 Annual Report by the Partner Organisation to the Council of Europe Platform to Promote the Protection of Journalism and Safety of Journalists confirmed the alarming deterioration of the freedom of the European media following the outbreak of the Covid-19 pandemic at the beginning of 2020. As the virus rapidly spread across countries and Governments had to act rapidly, chaos slowly helped create fertile soil for disinformation. However, the need to curb the circulation of fake news about the Covid-19 became for some an excuse to silence unwanted criticism, mainly from journalists.
Recently adopted or planned policy changes to curb disinformation have raised concerns among journalists in several EU countries like Hungary, Spain and Bulgaria. On the other hand, journalists also had to face the angry “Covid-deniers” that accused reporters of being part of a sort of conspiracy, as violent episodes have been recorded almost all around the EU. Nevertheless, besides open violence, a more subtle threat is targeting the work of journalists.
A SLAPP on the face of democracy
SLAPP stands for Strategic Lawsuits Against Public Participation and identifies a category of abusive lawsuits filed by a party with the aim of silencing critical speech.
SLAPPs can be initiated by state organs, corporations or individuals against “weaker” parties like civil society organisations or journalists. These powerful and wealthy plaintiffs will exploit national laws against defamation to bring critical voices to court. Moreover, plaintiffs in SLAPPs might resort to “forum shopping”, consisting of selecting the country where they want the legal proceeding to take place, usually the one with the most advantageous legislation for them. In a SLAPP, the plaintiff does not seek justice, but instead it wants to drag procedural delays overtime to drive up costs and put pressure on the defendant. A SLAPP wants to isolate, weaken and force the victim to stop using its voice.
Within the EU, since there are still no specific laws, the degree of protection from SLAPPs still depends on the legal environment of each Member State, which means how harsh are defamation laws or how effective are safeguards against vexatious litigations. Nevertheless, in the meantime, the SLAPP will have already sorted its effect of hindering information and even be the first step of a dangerous escalation for targeted journalists. When critical voices are silenced, then public opinion loses an important instrument for a healthy democracy. Despite the grim environment, the prioritisation of Rule of Law protection by the von der Leyen Commission might represent a step in the right direction.
Two possible solutions within the EU Strategy
The EU strategy to protect journalism is wide-ranging and still in the making. On September 16, 2021, the Commission adopted a Recommendation on the Protection, Safety and Empowerment of Journalists as part of its wider strategy to support media freedom and pluralism in the EU within the Democracy Action Plan. Despite not having any binding force, the Recommendation express the views of the Commission and suggest a line of action to the Member States. Particularly, the Commission envisages a broad line of intervention that would protect media professionals both online and offline, with close attention to female journalists and members of minority groups. In terms of funding, the current Multiannual Financial Framework invests 75 million euros in the area of media pluralism, journalism and media literacy, fundings through which the Commission seeks to contrast attacks on the freedom of the media.
Concerning SLAPPs, more specific instruments are being considered. The European Parliament calls for the adoption of a proper anti-SLAPP Directive based on the suggestions made by several organisations of journalists in order to rebalance the uneven power gap between the targets of SLAPPs and their accusers. The pros of adopting a directive would be that of ensuring that all Member States would need to equip themselves with an anti-SLAPP strategy and set out the means to defend journalism and other critical voices from such vicious attacks. By establishing a legal definition for all the EU would mean that national judges could have clearer references on how to identify SLAPPs from genuine defamation claims.
The soft law strategy adopted by the Commission has the perk of being more immediate, of helping raise awareness and to might trigger more responsive Member States to act faster. On the other hand, the proposal of the Parliament would place the EU anti-SLAPP strategy on a more solid basis (legally speaking), although the process of lawmaking at the EU level is longer, requires more efforts and might offer a watered-down document. Nevertheless, regardless of the means, it is of the utmost importance to act and keep the debate and the attention of legislators and public opinion on the state of media freedom alive.
Conclusion
Democracy is about making choices. In order to make conscious choices, it is vital to be informed. In this sense, journalists are at the frontline in ensuring that citizens can dispose of this information. In doing so, journalists might become a nuisance for some people. The killings of Daphne Caruana Galizia, Peter de Vries, Ján Kuciak and many other journalists, represent a clear intention to violently suppress public debate and, to a higher extend, to twist the functioning of our democracies.
The Covid-19 pandemic has exacerbated this environment, with journalists being assaulted, injured or threatened simply for doing their job. Besides more violent attacks, SLAPPs are by no means less harmful and should not be overlooked. Our legal systems should never become weapons to silence public opinion. The protection of freedom of information and independent journalism is a common challenge for the whole EU, and consequently, a common solution should be adopted.
Although not the easiest route, the adoption of ad hoc binding legal tools, like a directive, would be an important step ahead in the right direction, as it would help introduce a definition of SLAPP and establish a defence mechanism against these attacks on the right to inform. However, this does not automatically means that non-binding actions are less important as they send the message that the debate is far from being close. This is the kind of message to those who think that can silence the voice of information. We owe that to all the journalists that paid the ultimate price trying to bring us the truth.
