The European Parliament has drawn up a draft report on how to strengthen democracy and media freedom and pluralism in the EU. The paper examines the undue use of legal actions under civil and criminal law to silence journalists, NGOs and civil society.

The authors have identified a ‘significant gap’ in the integrity of the legal order of the EU, which requires robust legislative intervention.

The study says that Strategic Lawsuits Against Public Participation (SLAPPs) are legal actions used with the purpose of preventing reporting on:

• Breaches of EU and national law,
• Corruption or other fraudulent practices, and
• Blocking public participation and debate.

Key feature

“The key feature of SLAPPs is their tendency to transfer debate from the political to the legal sphere,” the paper points out. 

“Energy and resources are diverted from the relevant public-interest project to the lawsuit.

“Private citizens, NGOs, journalists and small media outlets and civil society are likely to be intimidated by the large damages and expensive legal costs,” it says. “By inflicting these burdens on one subject, initiators of SLAPPs aim to discourage others from conducting future campaigns.”

Common target

‘Affluent entities’ also set up funds to offset the costs of third parties willing to pursue litigation against a common target.

SLAPPs are characterised by abuse of process by a plaintiff, or excessive claims in matters in which the defendant is exercising a constitutionally protected right.

Legal victory seldomly materialises, but procedural costs and the threat of disproportionate damages have a broader ‘chilling effect’, the paper says.

News Media Europe has examined the situation in Ireland, and has concluded that it is difficult to deal with strategic law suits separately from wider reform of the law of defamation.

While libel reform in the UK has ameliorated London’s position as the defamation capital of Europe, legal threats from wealthy litigants are successful in Ireland because of the onerous costs involved.

‘Strategic litigation’

“Strategic litigation works in Ireland because the costs associated with defending actions and the financial consequences of defeat are so onerous,” says media lawyer Michael Kealey (DMG Media).

“With our Supreme Court having upheld an award of €1.25 million for a bad – but not the most serious – defamation (even though that decision was criticised by the ECHR), and with legal costs running into hundreds of thousands of euro, the media has become risk adverse,” said Kealey.

“This is so, even with cases they feel they might win. There’s also the problem, possibly unique to Ireland, of impecunious plaintiffs suing so that the chances of recovery of costs, even in victory, is slight. 

Even starker

“These problems are even starker now because of the enormous financial pressures on the ‘traditional media’ ­– circulation and listenership is down, and the greater part of advertising funds is being diverted to Internet Service Providers who do not labour under the same legal constraints or responsibilities,” he added.  

Mr Kealey said that, in his view, the best way to deal with SLAPPs in Ireland would be in the context of reform of the Defamation Act 2009. The promised statutory review of the Irish defamation law is now more than five years overdue. 

The European Parliament study, commissioned by its Policy Department for Citizens’ Rights and Constitutional Affairs, at the request of the JURI Committee, analyses legal definitions of SLAPP, and assesses the compatibility of anti-SLAPP legislation with EU law.

Reforms sought

Print-media umbrella body NewsBrands Irelands has already called for the following reforms in Ireland: 

• The abolition of civil juries to bring predictability to awards, and to reduce costs by shortening the length of trials,
• A cap, so that general damages in defamation cases could not exceed those in personal-injuries actions,
• The introduction of a ‘serious-harm’ test, such as that operating in the UK, before a plaintiff would be entitled to sue, and
• Ensuring that news websites do not have liability for third-party commentary, so that the pitch is levelled with that enjoyed by the internet giants. 

Vibrant civil society

The European Parliament paper reiterates that independent journalism and access to pluralistic information are key pillars of democracy, and that a vibrant civil society is essential for any democracy to thrive.

Retaliatory lawsuits deter freedom of expression on matters of public interest, and constitute a significant threat to the fulfilment of this obligation, the paper says.

By restricting scrutiny of matters of public interest, whether of economic or political concern, SLAPPs also have a deleterious effect on the functioning of the internal market, the paper states.