By James Sullivan
After much debate, the European Commission is set to finalise its anti-SLAPP laws, codifying protection for journalists, media organisations, activists, academics, artists and researchers against legal actions designed to silence critical voices. It has been a long road that owes a great deal to Daphne Caruana Galizia, the Maltese investigative journalist who fell victim to these practices and was murdered in 2017….
The pernicious effect of SLAPP lawsuits against journalists, watchdogs and activists has been decried for years. Businesses, special interests or authoritarian governments have been using them to attack, intimidate, censor and financially ruin individuals thought to be acting against their interests, often through investigative journalism and activism. The main objective is to suppress information that should be made public, often protecting shadowy dealings, corruption or financial impropriety. It has come as music to the ears of many that the EU has finally decided to act.
“Freedom of expression and free media are crucial to the functioning of our European democracies, and our free and open societies. Now that we have reached a general approach, we move towards a stronger protection for journalists, human rights defenders and others who engage in public debate,” said Gunnar Strömmer, Swedish minister for justice. The draft EU directive will finally put in place procedural safeguards against such claims in civil matters with cross-border implications.
What is a SLAPP?
The European Center for Press & Media Freedom defines SLAPP as “a lawsuit filed by powerful subjects (e.g. a corporation, a public official, a high profile business person) against non-government individuals or organisations who expressed a critical position on a substantive issue of some political interest or social significance.” The acronym SLAPP stands for strategic litigation against public participation. In short, these lawsuits are weaponised in order to intimidate and censor critics by burdening them extreme legal defence costs, forcing them to abandon their criticism or opposition. The aim is not usually to actually win the case, but to exert such financial and psychological pressure on the target that they succumb to fear and anxiety and eventually abandon their investigations or publications.
“SLAPP lawsuits are a threat to the rule of law and seriously undermine the fundamental rights to expression, information and association. They are a form of legal harassment and an abuse of the justice system that is used increasingly by powerful individuals and organisations to avoid public scrutiny”, said Tiemo Wölken, (S&D, German), the EU Parliament’s rapporteur, adding : “Our courts should not be seen as a playground for powerful individuals, companies and politicians and should not be abused for personal gain.”
A long road to anti-SLAPP
SLAPP lawsuits are a phenomena that have aggravated the general climate for journalists in Europe that is currently rather fragile, according to Professor Pier Luigi Parcu, Director of the Centre for Media Pluralism and Media Freedom (CMPF): “The MPM [Media Pluralism Monitor 2022] clearly demonstrates the present fragility of media pluralism in Europe in view of the arduous recovery from the COVID-19 pandemic and continuing digital disruption”, said Professor Pier Luigi Parcu. “While it is evident that we need professional, quality journalism now more than ever, we are increasingly seeing incidents of violence against journalists, online threats, and economic uncertainty. A modest recovery of media markets has not benefitted the working conditions of journalists, harming their ability to perform their essential role in society at the service of our democratic discourse.”
There are many cases of SLAPP lawsuits ruining the lives and reputations of journalists working for the public good, and the process of introducing anti-SLAPP legislation has been far from plain sailing. Legal differences between member states, the definition of “cross-border” cases (a prerequisite for the EU directive to apply), the notion of early dismissal of “obviously illegal” lawsuits, and the possibility for a defendant to claim damages, have all been contentious issues within the European Parliament. A key aim of the directive being to harmonise national approaches, with national laws varying so drastically. “We want to have uniform legal protection,” said Tiemo Wölken.
Journalists around Europe have found themselves in legal quagmires following SLAPP lawsuits. In Serbia, the European Federation of Journalists (EFJ) highlighted concern about the verdict of a SLAPP case against investigative Serbian Crime and Corruption Reporting Network outlet KRIK. The media outlet is fined for publishing news about the trial of a crime gang in Serbia.
In Romania, the Romanian Centre for Investigative Journalism (RCIJ) investigated dubious transactions in the football business. Although the investigation went worldwide, the journalists were taken to court by two Turkish businessmen to have their names removed from the articles. “I would have been financially ruined. The stress caused by such proceedings is incredible. They force us to abandon our principles,” one of the investigators told BIRN.
Daphne Caruana Galizia, a martyr for press freedom
One case in particular brought the issue of SLAPP lawsuits into the spotlight: the brutal persecution and murder of Maltese investigative journalist Daphne Caruana Galizia. Killed in a car bomb outside her home in October 2017, Galizia had been running a deep investigation into Maltese politicians and their business associates for widespread corruption and malpractice.
Her latest blog posts had specifically targeted Malta’s prime minister, Joseph Muscat, and two of his closest aides, connecting offshore companies linked to the three men with the sale of Maltese passports and payments from the government of Azerbaijan.
“The Prime Minister, whose aim appears to be a thousand-year reich masquerading as a democracy, will act magnanimous with the vanquished, while all the while plotting secretly how to do them in further and wrest even more control at the expense of the public and our rights,” she said in a blog on the opening of the Maltese parliament.
She attacked the sleaze and corruption within Muscat’s cabinet, suggesting he made Jose Herrera Deputy leader in return for looking “after as his parliamentary secretary for ‘competitiveness’, which includes remote gaming and casinos….”
She did not hesitate to attack the Prime Minister’s Chief of Staff, Keith Schembri, denouncing “his companies in Panama, the British Virgin Islands, Gibraltar and Cyprus, his trust in New Zealand” or his close links, in the sensitive sector of banknote printing for central banks, with companies such as the American firm Crane Currency or the Japanese firm Komori, notably through its company Kasco Technical. Analysing the terms of an agreement between Crane and the Maltese government, she highlighted in 2016 that the company “Kasco Technical, which is owned (…) Keith Schembri, is the official Malta distributor for Komori”, and “that Crane Currency will be using only Komori machines for its Malta operation.”
She also attacked the banking sector, accusing the Malta Financial Services Authority of “refusing orders by their superiors to carry out an on-site inspection at Pilatus Bank.” The bank was embroiled in a money-laundering scandal, and once again Galiazi name-dropped the Prime Minister’s Chief of Staff, stating that the bank was also a “related subject of an inquiry by Magistrate Aaron Bugeja, which is primarily into the ownership of Egrant Inc, the third company set up in Panama in tandem with those owned by Konrad Mizzi and Keith Schembri, the Prime Minister’s chief of staff.” These are just some examples of stories that earned her fierce hatred, resulting in a never-ending series of trials to silence her. At the time of her death, Columbia Journalism Review reports she had 42 civil libel lawsuits against her and her assets had been frozen. The tidal wave of SLAPP lawsuits was passed onto her family following her murder. “It’s just a form of harassment to eat up your time, eat up your money,” said Galizia’s son, Matthew, who is also a journalist, says. “It costs very little to file a libel suit in Malta… there’s almost no risk to the plaintiff. And the defendant has to pay to respond, otherwise they lose by default.”
With regards to SLAPP lawsuits, the still-investigated Galizia murder seems to have been the straw that broke the camels back. Unofficially, the new European anti-SLAPP directive bears Galizia’s name. The scandal led to serious political mobilisation for the protection of investigative journalists, watchdogs and media organisations.
Journalists around Europe began to mobilise and protest the continued use of SLAPPs to intimidate them. The Croatian Journalists’ Association (HND), for example, led a march through Zagreb to protest the 1,100 libel cases open against journalists in 2019. Although anti-SLAPP measures exist around the world, Europe has been slow to catch up, with judges often unfamiliar with the phenomenon of SLAPPs, and lack understanding that libel suits are being used by plaintiffs in this way. In Malta, Schembri resigned from his political position, a public inquiry concluded that “the state should shoulder responsibility” for Galizia’s death. While the investigation is going on, the press continues to cover the matter regulary.
The directive is yet to be put in place, with some MEPs accusing the European Parliament of trying to “water down” the anti-SLAPP and Media Freedom directives. As of July 2023, the legislation was still being negotiated, with hopes for a quick resolution. “Every minister sitting around that table who is going to be negotiating that text with us has to be able to hand on heart say that I did everything I could to protect journalists and press freedom in my country and all countries of the European Union,” said European Parliament President Roberta Metsola in July following a plenary vote.
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