Strategic Litigation Against Public Participation (SLAPP)

The first panel in the afternoon focused on so-called Strategic Litigation Against Public Participation – SLAPP. The term SLAPP refers to abusive and obviously unfounded legal proceedings that are increasingly used against persons engaging in matters of public interest to ensure the observance of democratic values and fundamental rights. The purpose of these types of lawsuits is to intimidate and further to suppress criticism.

Charlie Holt (Greenpeace International / CASE Coalition against SLAPP in Europe) introduced the topic of these strategic lawsuits, by explaining the characteristics and giving current examples. He emphasized that SLAPPs should be taken seriously as a threat to environmental activism, referring to cases from India, France, Canada and the United States of America. Results of a comparative analysis were presented, showing that the number of such lawsuits in Europe continuously rose over the last decade, reaching its peak in 2020 with 114 cases. According to Holt, the typical SLAPP targets are small campaigning organisations or low-profile individual activists. Charlie Holt closed his presentation with an appeal to all lawyers to not only play a role in facilitating SLAPPs but even more important to play a key role in fighting back against them.

The European Commission’s propsal for an “Anti-SLAPP Package” indicates that the EU legislator has recognized the SLAPP problem. The second speaker of the panel, Zsuzanna Belenyessy (Legal Officer in the Directorate General Environment of the European Commission) presented the content of this proposal and gave her assessment. She described that the proposed package includes a directive regulating procedural safeguards against SLAPP in cross-border civil and commercial cases. Belenyessy summarized that the protection mechanism is based on three pillars: 1) early dismissal of manifestly unfounded court proceedings, 2) remedies against abusive court proceedings (e.g. compensation of damages and penalties etc.), and 3) protection against third-country SLAPP-judgments.

Lien Stolle (Center for Human Rights at Ghent University) linked her presentation directly to the “Anti-SLAPP package” by placing SLAPPs in the context of fundamental rights. According to her explanations and cited examples from case law, SLAPPs interfere with a number of fundamental rights. These include, in particular, the right to public participation, the right to freedom of expression and information and the right to receive information, the right to assembly, and the right to effective remedy and the right to a fair trial. It also became clear that SLAPPs have a “chilling effect” on democratic debate and public participation. The European Court of Human Rights highlighted this issue in Steel & Morris v UK (68416/01, also known as “McLibel-Case”) as wells as recently in OOO MEMO v Russia (2840/10), where the Court explicitly referred to SLAPPs.