Alarmed by the chilling effect that abusive lawsuits have on freedom of expression and public participation, the Council of Europe has issued a recommendation to its 46 member states aimed at countering the use of strategic lawsuits against public participation (SLAPPs), often used against journalists and other public watchdogs.
The Committee of Ministers calls on members to devise comprehensive and effective strategies to counter SLAPPs, understood as legal actions that are threatened, initiated or pursued to harass or intimidate their target aiming to prevent, inhibit, restrict or penalize freedom of expression on matters of public interest and the exercise of rights associated with public participation.
The recommendation interprets public participation and public interest broadly, extending it to everyone’s democratic right to participate in public debate and public affairs, online and offline. It is not limited to journalists and other media actors but encompasses all public watchdogs and contributors to public debate, including civil society organizations and activists, human rights defenders, and academics.
The recommendation contains a set of guidelines intended to apply to civil lawsuits, as well as to administrative and criminal law contexts, and to legal intimidation tactics. It covers all stages of legal action, including an initial threat of legal action, which can have a chilling effect on freedom of expression and public participation.
Moreover, it covers all kinds of SLAPPS, including both domestic and cross-border lawsuits, multiple and coordinated lawsuits, and lawsuits targeting anonymous public participation.
To facilitate the identification of SLAPPs, the recommendation identifies a non-exhaustive list of 10 indicators, including the exploitation of an imbalance of power, the partial or full unfoundedness of the claimant’s arguments, the request of disproportionate, excessive or unreasonable remedies, and the engagement in delaying tactics.
The recommendation encourages states to further strengthen their existing legislative and policy frameworks to counter SLAPPs, particularly regarding structural and procedural safeguards – including to enable the early dismissal of SLAPPS -, remedies, transparency, support for targets and victims, and the development of education, training and awareness-raising programs.
The recommendation was adopted at a meeting held in Vaduz, Liechenstein, on 5 April in the framework of Liechtenstein’s Presidency of the Council of Europe’s Committee of Ministers.
