EU Directive

Abusive Trials: Safeguarding Journalists and Human Rights Defenders against SLAPP Cases

It is by no means an abstract allegation that autocratic and illiberal regimes such as Russia, Belarus, China and Turkey are at the forefront of repressing and even violently persecuting journalists, human rights defenders, and government critics to silence them from telling the truth.

More than a year ago, in April 2022, the Russian pro-democracy opposition leader, Vladimir Kara-Murza, was arrested in front of his house after he expressed his opinion against the Russian invasion of Ukraine. Kara-Murza arbitrarily received a sentence of 25 years in prison by a Russian court in Moscow for allegedly “disseminating false information about the Russian Army” based on Article 207.3 of the draconian Federal Law No. 32-FZ passed by the Russian parliament after the regime started the full-fledged war in Ukraine. His lawyers appealed the court's decision; however, on 31 July 2023, the Appeal Court in Moscow rejected his application and reinstated the sentence. This example shows that the judiciary in Russia is nothing but an extension of the executive, undermining the principles of separation of power and the rule of law that liberal democracies thrive on. As Mariana Katzarova, the UN Special Rapporteur on the situation of human rights in the Russian Federation puts it; the only crime Kara-Murza committed was telling the truth and exercising his right to freedom of expression and opinion. The list goes on and there are numerous similar cases and arrest warrants issued against journalists and human rights activists around the world, not only far away but also here in Europe. This marks a clear violation of the right to freedom of the press and independent journalism.

Such judicial procedures are called Strategic Litigation against Publication Participation, or shortly SLAPP, designed to silence, intimidate, and erase criticism, which demands accountability from governments on issues of public interest.

What are SLAPP lawsuits?

In 1996, George William Pring of Princeton University coined the term SLAPP in his book “SLAPPs: Getting Sued for Speaking Out.” He referred to such lawsuits filed by powerful entities such as corporations, government officials, and high-profile individuals against journalists and defenders who speak the truth and advocate for the rights of victims. As complex as it may be, the European Parliament described these judicial processes as groundless, abusive, and unfounded lawsuits that allege violations of fundamental rights against journalists and human rights activists exercising their right to freedom of expression. SLAPP cases such as defamation trials, public treason trials against journalists, tax fraud cases against defenders, etc., have been on the rise, posing significant risks to liberal democratic and human rights values.

SLAPP lawsuits present two undeniable negative impacts: First, they violate fundamental rights, especially the freedom of expression and the right to a fair trial; and second, they challenge the foundation of liberal governance by disrupting the checks and balances of power and government accountability. When the judiciary becomes an extension of the government, the principles of democracy are undermined. Thus, both international and European liberal democracies must combine forces to take effective steps to combat this phenomenon.

Challenges and the Gap in International Law

One of the primary challenges of SLAPP lawsuits is that the defendants, including journalists, human rights defenders, and lawyers, are the true victims. This is exacerbated by the fact that many jurisdictions around the world tend to lean towards prosecution in both criminal and civil cases. These baseless allegations subject journalists and rights defenders to societal hatred and smear campaigns not only on social media but also lead to real life threats imposed by the populist fanatics. In many cases, human rights defenders are arrested and tortured even before trials, and they are denied access to legal aid or defense lawyers. For instance, in 2022, Uladzimir Pylchanka, one of the lawyers of Maria Kalesnikava, the Belarusian opposition leader who received a ten-year sentence, stated that legal proceedings had been highly biased and he was not allowed to visit his client. Additionally, SLAPP lawsuits are protracted and can take years due to slow court procedures. This does not only place defenders in an inferior position but also inflicts a heavy financial burden on them. Freelance journalists are particularly vulnerable due to the lack of institutional support and financial pressure, emphasizing the need for special protective attention.

What is profoundly concerning and common among governments with autocratic as well as illiberal tendencies, is the pattern of repressive actions against liberal political opposition, human rights activists, journalists, and lawyers. Many of these governments enact abstract laws based on national interests and public security, exploiting gaps in international law. For instance, Article 19 of the International Covenant on Civil and Political Rights (ICCPR)   establishes the right to freedom of expression and opinion, including the dissemination of information. However, the third clause of Article 19 grants states leeway to restrict this right for national security and public order purposes. In other words, international law recognizes a margin of appreciation for states to regulate freedom of expression while considering national security. This discretion allows autocracies to adopt abusive laws and prosecute journalists, underscoring the need for further attention from international legal bodies to correct these gaps, especially regarding the proportionality of the measures they adopt in restricting this freedom vis-à-vis their obligation in protection and promotion of human rights.

The EU's Directive against SLAPP cases

Recognizing the threat that abusive lawsuits pose to the rule of law and human rights, on 27 April 2022, the European Commission proposed a directive (Draft Directive) to combat SLAPP lawsuits within the European Union. The Draft Directive recognizes such abusive lawsuits to prevent, restrict, and penalize public participation by unfounded and abusive claims. It also addresses cross-border litigation processes involving European parties and suggests early dismissal of civil cases lacking merit. The European Parliament's endorsement of the Draft Directive, with provisions placing the burden of proof on the claimant and offering compensation to victimized journalists, reflects the commitment to protecting free speech and press freedom.

The protective intent of the EU's Draft Directive sets a precedent for safeguarding journalists and human rights defenders. However, there is a need to expand the protection beyond the identified aim of SLAPP that includes prevention and punishment of public participation. Judicial abuses by autocratic regimes often serve other purposes too, such as suppressing issues of private interest with significant human rights implications. Likewise, the Draft Directive encompass civil lawsuits, leaving out cases of national treason and terrorism and national security allegations against human rights defenders. This requires a comprehensive second round review mechanism via semipublic expert consultations.

Addressing Repression and Abusive Court Procedures Globally

The battle to protect journalists and human rights defenders is pivotal for preserving democratic values and the rule of law. Their contributions in seeking truth and upholding justice must be shielded from abusive court procedures and repressive tactics. The journey towards a world where voices can be raised without fear of retaliation requires concerted efforts from liberal democracies, international institutions, and civil society. As these defenders endure trials, their courage and resilience illuminate the path towards a more just and transparent society. The international community, along with institutions like the United Nations and the Council of Europe, should advocate for the protection of journalists against SLAPP lawsuits on a global scale. European countries along with their allies should propose a resolution to the UN General Assembly highlighting the urgency of the issue and rally support against autocratic governments. Ensuring international cooperation, legal reforms, and global awareness will fortify the fight for freedom, democracy, and the fundamental rights of journalists and human rights defenders alike.