SLAPP: open dialogue with the Commission

A public consultation on gag complaints is open until 10 January. In a meeting on the subject with organisations from all over Europe, which we attended on Thursday 25 November, Vice President of the European Commission Vera Jourova renewed her call for numerous contributions from all countries of the EU

“Be innovative and concrete!”. The invitation by Vera Jourova, the Vice President of the European Commission who opened the day of work on SLAPP on Thursday 25 November, could not have been more passionate and direct. Called to gather information on how the phenomenon is developing in the various member states and to provide the Commission with suggestions on the measures to be taken to combat this legal abuse that hinders democratic participation, the day was led by a trio of officials from the DG Justice of the Commission, which facilitated a very concrete and participatory debate.

“The meeting with you – confirmed Andreas Stein – is a fundamental moment in the process that will lead the Commission to present concrete measures in the spring”. There is talk of a directive and a recommendation, the intentions are very clear, but "there are some technical issues" – or rather, technical-legislative – "to be resolved, such as restricting access to justice and balancing it with the right to free expression".

The Commission's commitment against any legal abuse that limits the activity of journalists, activists, and human rights defenders at national and transnational level, after being officially stated in the Democracy Action Plan  in December 2020, has been reitarated several times in recent months, finding an important boost in the INI initiative report of the European Parliament, approved by a very large majority on 11 November. For this reason, the MEPs who worked on it were invited to Thursday's meeting.

“The only way to resolve the issue – confirmed Roberta Metsola, the Maltese MEP who, together with Tiemo Wolken, led the INI work on SLAPP, meeting victims and organisations across Europe – is for institutions to work together with stakeholders. We spent months listening to everyone, and trying to convince our colleagues in the European Parliament that our initiative should be supported, and now we have the green light”.

The text  adopted by the European Parliament ("Strengthening democracy, press freedom and media pluralism in Europe: the abuse of civil and criminal actions to silence journalists, NGOs and civil society") is not so much about legislative initiatives, but preventive actions, for which the Commission is asked to intervene so that gag complaints can be quickly closed, introducing penalties for harassing plaintiffs. The concrete requests of the European Parliament are clear: investments are needed in the training of judges and lawyers, so that they recognise SLAPP cases.

Vice-President Vera Jourova echoed the Maltese MEP: "I want to reiterate the fact that, when we talk about proposals, we too think about practical measures, we talk about financing, concrete defence instruments that are to be financed as soon as possible, even before the legislative measures arrive”. In any case, in fact, a directive would take a long time to adopt in the various countries, while everyone's intent remains to fight SLAPP immediately.

“Why don't we think of insurance policies that can protect freelancers as publishers don't cover their legal fees?”, suggested the Vice President.

The day continued until four in the afternoon with testimonies and suggestions, proposals, ideas and contributions from the various European countries.

Together with about forty organisations and trade unions from all over Europe, OBCT also made its contribution, for example presenting the measures already existing in Italian legislation, such as Article 96 of the Code of Civil Procedure, which identifies and sanctions the gag complaint conducted in bad faith, but can only do so at the end of the trial. “Sooner or later, the legal system recognises the good faith of the journalist or the right of the activist to disseminate a certain type of information – we stressed – but it is precisely here that the censorship effect of SLAPP hides. While the victim is acquitted, perhaps after years of trial, what has happened in the meantime to the silenced piece of information?".

Speakers included Atlas of Hate – a Polish association for LGBT rights, EFJ – the European Federation of Journalists, IPI – International Press Institute, CCBE – the European lawyers' association, Sarah Clarke of Article 19, Dirk Vorhoof – law expert dealing with freedom of expression at Ghent University, and Giulia Lucchese of the Council of Europe, who announced an initiative by the CoE to set up a group of experts charged with drawing up a recommendation by 2023.

The Vice President recalled how the Commission also carries on the dialogue with the member states, speaking with the Justice ministers of the various countries, and praised the initiative of Germany, which explicitly mentions the contrast to SLAPP in its coalition agreement. "Unfortunately, the reactions of the various ministers are different – said Jourova – but this does not scare us, since it reminds us of what had happened for a similar initiative in support of whistleblowers".

That the governments of individual countries want to prevent the adoption of effective anti-SLAPP measures by the European Union is completely understandable, given that – in Italy, Poland, Croatia, and many other countries – their members make abundant use of gag complaints.

"However, we want to present the most ambitious combination of measures of various kinds – insisted the Vice President – so that freedom of expression can be defended without limiting too much the right of access to justice".

To stimulate discussion and collect concrete suggestions, the objectives of these measures were recalled, which aim to protect journalists and human rights defenders from the abuse and effects of SLAPPs:

1. to develop a common concept across the EU by adopting common definition and contrast criteria;
2. to ensure that there are concrete procedures for the rapid filing of cases and concrete defence tools for victims;
3. to build awareness and competence among both legal professionals and citizens and potential victims;
4. to ensure that victim support tools are known and accessible.

In this spirit of concreteness, the need was stressed many times to involve the protagonists, to hear the victims, to give a voice to those who have suffered or are subjected to this type of intimidation. In addition to a targeted consultation directed at judges and members of the judiciary, the Commission opened a public consultation for all until 10 January: "Help us tell what we need to do", the officials repeated.

Hence the invitation to journalists, activists, lawyers, human rights defenders, civil rights organisations, and even ordinary citizens to answer a questionnaire : there are 18 questions, some with multiple choice, others with space for a descriptive contribution, seeking the protagonists' account of the situation "on the field". Direct, concrete questions, like: “do you know any cases of SLAPP? Who are the victims? Who are the authors? Do you know of cases where the lawsuit is only threatened? What are the consequences for those who receive a reckless complaint? What should the European Union do? What would the victims need?”.

"We realised that there is not much awareness of citizens' right to be protected from gag complaints – said an official – so it is also important to collect data, monitor, to understand the phenomenon and how it evolves".

While waiting for insiders to find the "creative solutions" requested by Jourova to be able to juggle Article 114 and Article 81 of the EU Treaty, all that remains to do is to disseminate as much as possible the invitation to contribute to the consultation, available in all the languages of Europe, to make the victims' voices heard, to tell concrete cases, to make suggestions and proposals. Access  to the questionnaire requires a very simple registration, even only via a Facebook account.