The sting of a SLAPP

A US Republican congressman has filed a $250 million defamation suit against The Washington Post and a journalist over an article saying he told President Donald Trump about an intelligence briefing about Russia and the 2020 election.

This is the seventh lawsuit filed in the past 12 months by Californian congressman Devin Nunes in a State other than the one he represents. The reason behind it all: California has one of the country’s strongest legislation against lawsuits aimed at silencing critics on topics of public concern, known as Strategic Lawsuits Against Public Participation (SLAPP).

Nunes’ tactic is part of a growing movement of corporations, businesses and individuals who use SLAPP as a way of silencing the media through long drawn out suits that can cripple the media organisation. The high number of suits filed by Nunes has prompted questions about the source of his funding, which led to a watchdog group to write to the Congressional Ethics Office, asking for an investigation.

Just last week, President Donald Trump’s re-election campaign said it was filing a libel suit against The New York Times for intentionally publishing a false opinion article that suggested Russia and the campaign had an overarching deal in the 2016 US election.

This trend is not only limited to the US. In Europe – and in Malta – SLAPP suits have come under increasing scrutiny following the growth in the number of cases filed and requested financial damages.

Journalist Daphne Caruana Galizia had around 40 pending libel cases before she was killed in 2017 that were filed by companies, government officials and individuals, which were described by her son Matthew as a “never-ending type of torture”.

She was threatened with a SLAPP suit by Henley and Partners while the owner of the now-defunct Pilatus Bank, Ali Sadr Hasheminejad, who is now facing trial in the US for money laundering and breaching of sanctions, had started libel proceedings against Caruana Galizia “to protect his reputation” in Arizona demanding compensation of US$40 million.

In February, the Bulgarian owner of Maltese Satabank filed two separate SLAPP lawsuits in a Bulgarian court against Maltese blogger Manuel Delia and The Times of Malta – all in the span of a week.

The Shift also faced threats of SLAPP lawsuits from Henley and Partners and a Russian banker demanding that stories be taken down. The Shift refused and published the threats received.

In an anti-SLAPP conference organised by Greenpeace, Caoilfhionn Gallagher QC, barrister at Doughty Street Chambers, highlighted how companies and individuals were shopping around to find the best countries to file SLAPP suits. London, for example, has become quite popular because of the exorbitant legal fees that will leave a media organisation or journalist racking up a bill of thousands of pounds very quickly, she said.

The presence of, or lack of, anti-SLAPP law is also crucial. To refer back to the Nunes lawsuits, California’s anti-SLAPP law allows defendants to file a special motion at the outset of litigation if they feel the lawsuit is without merit and affect the First Amendment rights on a topic of public interest. If a judge sides with the defendant, the plaintiff is required to pay the defendant’s legal fees.

Last month, a Canadian court ordered fast food chain Subway to pay the CBC $500,000 in legal fees after it lost its defamation case against the public broadcaster. CBC won the $120 million damage lawsuit by using anti-SLAPP legislation in pre-trial – even so, the judge called out Subway for its all-out approach in the legal battle, which made it longer and more complex.

On an EU level, European Commission Vice-President Vera Jourova is working on introducing European protection against SLAPP. In a letter, 27 international organisations called on her to include everyone who has been impacted by SLAPP lawsuits in the EU’s proposed new rules.

In Malta, the Opposition has just filed an anti-SLAPP draft bill in Parliament – the second in the span of two years after the Labour government voted against the first proposal in 2018.

The excuse used was that existing laws already protected Maltese citizens against judgments from non-EU countries, as long as the defendants refuse to participate in the court proceedings. Jourová, however, had denied this, saying that an EU Member State had a right to legislate against SLAPP filed to protect their nationals from such vexatious lawsuits.

Justin Borg-Barthet, a senior lecturer in EU law at Scotland’s University of Aberdeen law school, also put forward a number of proposals in an in-depth report on SLAPP on behalf of five international NGOs, which he presented to the European Commission. He called for EU law to be changed so that defamation and libel suits would have to be filed in the courts of the country of the media organisation or journalist.

Meanwhile, journalists and organisations across Europe now have a new tool to use – the Rapid Response Mechanism (RRM) for violations of press and media freedom, which will be run by a consortium led by the European Centre for Press and Media Freedom (ECPMF).

Set up to mitigate the consequences of the recently observed deterioration of press and media freedom in certain EU Member States, the mechanism will enable coordinated rapid responses to violations of press and media freedom with online harassment, especially against female journalists, SLAPP and the fight against impunity among others.

“The murders of Caruana Galizia and Jan Kuciak dramatically proved the need for an instrument like the Rapid Response Mechanism. It is high time to strengthen protection and prevention on a European level”, ECPMF’s Managing Director Lutz Kinkel said. 

The mechanisms include advocacy, campaigning, legal aid to practical support, training to consultation. The monitoring of press freedom violations will mainly be done by the International Press Institute (IPI) and the European Federation of Journalists (EFJ) and any alerts will be submitted on Selected cases will also be submitted to the Council of Europe’s Platform for the protection of journalism and safety of journalists.

The consortium is made up of ECPMF, ARTICLE 19, the European Federation of Journalists (EFJ), Free Press Unlimited (FPU), the Institute for Applied Informatics at the University of Leipzig (InfAI), International Press Institute (IPI) and CCI/Osservatorio Balcani e Caucaso Transeuropa (OBCT).


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