How Are Courts Responding to SLAPPs? Analysis of Selected Court Decisions from Across the Globe
Date
Summary
"The increase of cases of strategic lawsuits against public participation (SLAPPs) is a growing concern for human rights bodies, the media, and civil society around the world."
This report, authored by ARTICLE 19 for Columbia Global Freedom of Expression, examines different judicial responses to strategic lawsuits against public participation (SLAPPs) around the globe. Based on 20 case studies, it looks into whether courts recognise the danger posed by SLAPPs and whether and how they assess SLAPP cases. While the research is not exhaustive, and further in-depth research into individual jurisdictions is necessary, this study seeks to ascertain some basic trends from selected cases.
As explained in the report, "SLAPPs are a form of abusive litigation that intimidate and harass journalists, media outlets, protesters, or environmental and human rights defenders. These lawsuits are typically initiated by politicians, public officials, wealthy businesspeople, big companies, and public figures aiming to silence critical voices and stifle scrutiny and public debate. Rather than seeking to obtain a favourable decision and compensations, the aim of SLAPPs is to drain defendants in lengthy and expensive judicial processes. Those targeted by such costly legal proceedings are often ill-equipped to defend themselves and are targets of other forms of intimidation tactics."
SLAPPs are particularly concerning from the perspective of freedom of expression and freedom of the media, as the lengthy and expensive judicial processes have a dampening effect on those who are critical of governments, public institutions, and other powerful actors. They also often happen in the context of other attacks, including physical violence and discrediting campaigns. This study was, therefore, conducted in order to better understand the impact of different judicial responses to SLAPPs in an effort to determine the best way to combat them.
The study is divided into three sections. First, the report provides a brief overview of the concept of SLAPPs and why they are concerning from the perspective of freedom of expression and freedom of the media. Second, it seeks to deduct some key aspects of judicial responses to SLAPPs in jurisdictions without dedicated anti-SLAPP protection, determine whether these are adequate, and outline what underlying issues need to be addressed to eliminate the problem of SLAPPs. The study on judicial responses is based on the analysis of 20 court decisions selected from the Global Freedom of Expression Database (GFoE). The report makes the point that, although, it is impossible to deduct global trends from this small sample, the cases were selected to show responses from different jurisdictions and legal systems. Examples are from countries such as Ecuador, Russia, India, Mexico, and South Africa. The conclusion of the report provides some initial recommendations on how the good practices of courts and existing gaps should be addressed based on international freedom of expression standards.
In terms of the findings and related recommendations for action, the study shows that in the examined cases, many courts have provided protection against SLAPPs despite lacking special anti-SLAPP legislation, although in different ways and with varied implications. Several courts recognised that SLAPPs pose a threat to freedom of expression and media freedom, and some courts explicitly refer to definitions of SLAPPs in other jurisdictions, correctly apply international freedom of expression standards, and even apply available procedural protection that exists in national law in SLAPP cases (e.g., the abuse of process provisions).
The study also showed that when protection against SLAPPs was provided, it came mostly at the level of the highest courts. Thus, it came after the defendants in SLAPPs invested financial and other resources (time, energy, and psychological) to get the cases dismissed, typically after years of litigation - which is exactly the purpose and dangers of SLAPPs. According to the paper, this finding points to the need for legislative reform to ensure that SLAPPs can be disposed of at a much earlier stage, that defence costs are kept to a minimum, and that deterrents against the use of SLAPPs are created. Therefore, states should adopt comprehensive anti-SLAPP legislation on a domestic level. This legislation should include, at minimum, the possibility to dismiss claims at the early stages of the proceeding and order payment of costs to defendants (especially the payments of costs of attorneys and trial fees).
At the same time, the study shows that underlying domestic legislation, under which many SLAPP cases are brought, needs to be reformed. States must ensure that all legislation restricting freedom of expression meets international freedom of expression standards. Since various criminal defamation, insult, and slander provisions are used against media outlets, journalists, and activists, their decriminalisation should be a priority. All criminal defamation laws - including insult, libel, or slander - should, according to the paper, be abolished without delay, even if they are seldom or never applied. They should be replaced, where necessary, with appropriate civil defamation laws.
The research also showed that lower courts are not properly applying international freedom of expression standards in their cases, especially if they consider public figures. Hence, training should be provided to judges at all relevant courts to aid them in recognising SLAPPs and on applying relevant international and regional human rights standards. In addition, international and regional human rights bodies can provide stronger guidance and standards in this area. As a starting point, human rights bodies should provide guidance on how states can fulfil their duty to prevent the abuse of judicial proceedings to interfere with the exercise of the right to freedom of expression and participation on public interest matters. This can come in various forms - e.g., through thematic reports, resolutions, and guidelines - made by special rapporteurs of international and regional human rights bodies (especially in the Inter-American and African human rights systems) or collections on best practices for the judiciary.
This report, authored by ARTICLE 19 for Columbia Global Freedom of Expression, examines different judicial responses to strategic lawsuits against public participation (SLAPPs) around the globe. Based on 20 case studies, it looks into whether courts recognise the danger posed by SLAPPs and whether and how they assess SLAPP cases. While the research is not exhaustive, and further in-depth research into individual jurisdictions is necessary, this study seeks to ascertain some basic trends from selected cases.
As explained in the report, "SLAPPs are a form of abusive litigation that intimidate and harass journalists, media outlets, protesters, or environmental and human rights defenders. These lawsuits are typically initiated by politicians, public officials, wealthy businesspeople, big companies, and public figures aiming to silence critical voices and stifle scrutiny and public debate. Rather than seeking to obtain a favourable decision and compensations, the aim of SLAPPs is to drain defendants in lengthy and expensive judicial processes. Those targeted by such costly legal proceedings are often ill-equipped to defend themselves and are targets of other forms of intimidation tactics."
SLAPPs are particularly concerning from the perspective of freedom of expression and freedom of the media, as the lengthy and expensive judicial processes have a dampening effect on those who are critical of governments, public institutions, and other powerful actors. They also often happen in the context of other attacks, including physical violence and discrediting campaigns. This study was, therefore, conducted in order to better understand the impact of different judicial responses to SLAPPs in an effort to determine the best way to combat them.
The study is divided into three sections. First, the report provides a brief overview of the concept of SLAPPs and why they are concerning from the perspective of freedom of expression and freedom of the media. Second, it seeks to deduct some key aspects of judicial responses to SLAPPs in jurisdictions without dedicated anti-SLAPP protection, determine whether these are adequate, and outline what underlying issues need to be addressed to eliminate the problem of SLAPPs. The study on judicial responses is based on the analysis of 20 court decisions selected from the Global Freedom of Expression Database (GFoE). The report makes the point that, although, it is impossible to deduct global trends from this small sample, the cases were selected to show responses from different jurisdictions and legal systems. Examples are from countries such as Ecuador, Russia, India, Mexico, and South Africa. The conclusion of the report provides some initial recommendations on how the good practices of courts and existing gaps should be addressed based on international freedom of expression standards.
In terms of the findings and related recommendations for action, the study shows that in the examined cases, many courts have provided protection against SLAPPs despite lacking special anti-SLAPP legislation, although in different ways and with varied implications. Several courts recognised that SLAPPs pose a threat to freedom of expression and media freedom, and some courts explicitly refer to definitions of SLAPPs in other jurisdictions, correctly apply international freedom of expression standards, and even apply available procedural protection that exists in national law in SLAPP cases (e.g., the abuse of process provisions).
The study also showed that when protection against SLAPPs was provided, it came mostly at the level of the highest courts. Thus, it came after the defendants in SLAPPs invested financial and other resources (time, energy, and psychological) to get the cases dismissed, typically after years of litigation - which is exactly the purpose and dangers of SLAPPs. According to the paper, this finding points to the need for legislative reform to ensure that SLAPPs can be disposed of at a much earlier stage, that defence costs are kept to a minimum, and that deterrents against the use of SLAPPs are created. Therefore, states should adopt comprehensive anti-SLAPP legislation on a domestic level. This legislation should include, at minimum, the possibility to dismiss claims at the early stages of the proceeding and order payment of costs to defendants (especially the payments of costs of attorneys and trial fees).
At the same time, the study shows that underlying domestic legislation, under which many SLAPP cases are brought, needs to be reformed. States must ensure that all legislation restricting freedom of expression meets international freedom of expression standards. Since various criminal defamation, insult, and slander provisions are used against media outlets, journalists, and activists, their decriminalisation should be a priority. All criminal defamation laws - including insult, libel, or slander - should, according to the paper, be abolished without delay, even if they are seldom or never applied. They should be replaced, where necessary, with appropriate civil defamation laws.
The research also showed that lower courts are not properly applying international freedom of expression standards in their cases, especially if they consider public figures. Hence, training should be provided to judges at all relevant courts to aid them in recognising SLAPPs and on applying relevant international and regional human rights standards. In addition, international and regional human rights bodies can provide stronger guidance and standards in this area. As a starting point, human rights bodies should provide guidance on how states can fulfil their duty to prevent the abuse of judicial proceedings to interfere with the exercise of the right to freedom of expression and participation on public interest matters. This can come in various forms - e.g., through thematic reports, resolutions, and guidelines - made by special rapporteurs of international and regional human rights bodies (especially in the Inter-American and African human rights systems) or collections on best practices for the judiciary.
Source
ARTICLE 19 website on June 6 2023. Image credit: Vladimir Flórez (Vladdo), illustrator
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