A relatively new threat to freedom of speech in our region is represented by so-called SLAPP lawsuits. SLAPP is an acronym of the English name Strategic Lawsuit Against Public Participation, which in translation means "strategic lawsuits against public participation". The term is now universally accepted, and has even found its place in dictionaries where it is defined as lawsuits containing claims based on defamation, which were actually submitted with the aim of intimidation, burdens, punishing or harassing the defendant for public speech against the plaintiff, the subject of which are questions of general interest.
First, it is important to clarify that a SLAPP lawsuit can be filed against anyone, natural or legal. The media and journalists are expected to be the most vulnerable, given that they perform tasks of public importance in the field of information, but practice in the USA has shown that citizens are also often sued.
As could be assumed, the plaintiffs who use this mechanism are usually wealthy companies or individuals, who, for the sake of protecting their own political, economic, reputational or other interests, sue those who publicly speak out against them in any way. Of particular concern is the data from comparative practice in the Republic of Croatia that there are indications that even judges are resorting to such lawsuits against the media.
The subject of the claim in SLAPP lawsuits most often refers to injury to honor and reputation, i.e. defamation, but this is not always the case, which further complicates the conceptualization and recognition of this phenomenon. For the sake of clarification, although these lawsuits are most often filed in civil proceedings, it is not excluded that, in states where defamation is not decriminalized, criminal proceedings are also used to achieve the goals of SLAPP.
SLAPP lawsuits are filed with the idea of intimidating and pressuring the defendants. The victim's work will be hampered, time will be taken away and self-confidence will be shaken. Court proceedings, which usually last several years and include the costs of court fees and attorneys, are very likely to completely exhaust the defendant financially. In the context of our region, in which the media are often small legal entities with unsustainable sources of income, it is not excluded that such a financial burden would at one point lead to their complete shutdown. Therefore, the goal of these lawsuits is not to reveal the truth, that is, to accept the claim, but to limit and silence public criticism that, for whatever reason, does not suit the plaintiffs. In the final outcome, not only the specific defendant, most often the media, will be burdened with fear and self-censorship, if it continues to exist at all after the court proceedings, but all others, taught by such an example, will take care of what they say, write and research. In other words, the reach of SLAPP goes beyond the impact on the specific defendant in the proceeding – these lawsuits have a devastating effect on a much wider audience, who will in the future refrain from critical articles about those inclined to use this mechanism.
The fact that the main goal of a SLAPP is not to succeed in court proceedings can serve as one of the criteria for recognizing this type of lawsuit. Namely, the basis of the claim is often imprecise or contradictory, and it is possible that it is based on false and/or unfounded allegations. An additional characteristic that can be attributed to SLAPP is the disproportionately high amount of the claim, which is primarily aimed at increasing the costs of the procedure, which usually has a more significant impact on the defendant than on the plaintiff. Also, the real intention and goal of the accusation could be recognized by a large number of lawsuits filed against the defendant by the same plaintiff (or related persons) in a relatively short period of time. Of course, all of the above are just examples of criteria for recognizing these lawsuits, the existence of which is not always necessary and will depend on a case-by-case basis.
SLAPP IN THE INTERNATIONAL ENVIRONMENT
In November 2021, the OSCE Representative on Freedom of the Media (RFoM) published a Special Report on Legal Harassment and Abuse of the Judicial System for Attacks on the Media containing certain recommendations regarding SLAPP suits against journalists and other media workers.
Since the legal security of media workers is enshrined in various principles and determinations of the OSCE, and since malicious actions can seriously threaten the freedom of the media, RFoM recommends that the authorities of all participating countries recognize the worrying and frightening effect of court cases and lawsuits initiated for censorship, of intimidation, silencing and exhaustion of media workers and houses, and to therefore consider some form of protection, including through regulations, for journalists and other media workers against such malicious lawsuits.
Back in 2018, the Committee of Ministers of the Council of Europe explicitly called on member states to consider adopting appropriate legislative solutions to prevent the occurrence of SLAPPs, as well as other abuses of the litigation process for the purpose of limiting freedom of expression. Given that the number of these lawsuits is increasing day by day across Europe, the Commissioner for Human Rights of the Council of Europe issued a statement in October 2020 calling on governments, journalists, organizations and individuals dealing with the protection of human rights and civil society to jointly by acting they stand in the way of this problem. Specifically, she proposed to approach this phenomenon in three steps. The first would mean the prevention of SLAPP lawsuits by enabling the initial rejection of such lawsuits, while increasing the awareness of judges and public prosecutors about this phenomenon, the introduction of measures to punish those who use this mechanism, primarily through the obligation to reimburse the costs of the proceedings, and finally mitigating the consequences of SLAPP lawsuits by providing support to defendants .
No country in the European Union has so far adopted legislation against SLAPP lawsuits. That is why the European Parliament, at the request of the Legal Affairs Committee, ordered an expert study on this topic, which was published in June 2021. The study found that both the EU and all member states should adopt a number of anti-SLAPP lawsuit measures, as well as that the reform of the Brussels I and Rome II regulations is necessary, in order to ensure legal certainty. In the study, among other things, comparative solutions to this problem, adopted in the USA, Australia and Canada, are shown, and in particular, a good example of the reform of procedural laws in Quebec, whose legal system is most similar to that of the EU member states, is pointed out. In short, the Code of Civil Procedure of Quebec provides for the possibility for the court to initially reject the claim, but only if it is convinced that the claims are manifestly unfounded, frivolous, aimed at delay or if it is established that the procedure is being abused, it is initiated in order to cause harm to another or that it is an attempt to defeat the ends of justice. The study also explained that the burden of proof should be shared, that is, after the defendant shows that the subject matter of the claim relates to public speaking on matters of public interest, the burden shifts to the plaintiff to convince the court that it is not a SLAPP, that is, that there is the factual or legal basis of his claim. In addition, it was proposed that certain punitive measures be prescribed for the plaintiff, either in the form of compensation for the costs of the defendant's proceedings or fines, not only in order to satisfy the defendant, but also to deter others from using this mechanism.
SLAPP IN SERBIA
photo: milan obradović / oebs...
According to data from the Analysis published by NUNS, between 2010 and 2020, at least 26 civil lawsuits were initiated against journalists, media, civil society organizations and activists for their activities as guardians of the public interest. More than half of these lawsuits were filed between 2018 and 2020.
The most lawsuits (22 in total) were filed against journalists and media organizations, four cases were filed against environmental activists and organizations, and one case was filed against an NGO, after it published information about alleged links between a public official and war crimes .
The results of this research identified the following as the main trends in this area:
• That the largest number of lawsuits were initiated by public officials and politicians - the research showed that the majority of cases were initiated in their own name by a small number of politicians and high-ranking public officials. These individuals also initiated a large number of cases against journalists and activists.
• That it happens that multiple cases are initiated for the same post - in the research it was shown that in several cases the prosecutors filed several lawsuits against the same defendants due to several texts on the same topic, so the defendants had to enter into long, extensive and expensive litigations concerning one issue.
• That the proceedings take a long time - even when defamation cases are ultimately dismissed - either at first instance or on appeal - journalists, media and activists must invest time and resources in legal defense. For example, at least five completed cases have been in court for five or more years. According to the defense lawyers in these cases, the usual reason for the postponement of the hearing in the first-instance proceedings is that the plaintiffs or their lawyers in the proceedings do not appear at the hearing.
• That compensation has a very unfavorable effect on journalists and activists - In the observed cases, journalists and human rights defenders had to pay between 100.000 and 550.000 dinars (from 850 to 4657 euros). In addition, if they lose, they also bear the costs of the plaintiff's lawyer, which are on average 204-510 euros. The amount of the fee may not be too much for large media organizations, but it represents a significant cost to small independent media organizations, and it is a particularly serious burden for activists and independent journalists.
On the other hand, the Analysis conducted by the "Slavko Ćuruvija" Foundation showed that there are lawsuits submitted to the High Court in Belgrade that have certain elements of SLAPP, but due to the lack of clear criteria and the adopted definition, they cannot be characterized as SLAPP with certainty at this time.
Namely, it was learned from various media that a company sued several dailies, portals, local media and cable televisions that reported on press conferences held in February 2021 in Vranjska Banja and Leskovac, where the business of this company was discussed . According to the defendant media, the amounts of the claims are unusually high and range from 11.740.770 dinars (100.000 euros in dinar equivalent) to 23.481.541 dinars (200.000 euros in dinar equivalent). From the report of the High Court in Belgrade, it was determined that this company submitted a total of 2021 lawsuits to that court in the period from March to May 34, of which the media were sued in 27 lawsuits, which is 79 percent of the total number of lawsuits filed, while the other lawsuits relating to political parties and politicians who spoke about this company in public speeches.
Bearing in mind the described characteristics of SLAPP lawsuits, first of all the fact that in this particular case the vast majority of lawsuits involve the same plaintiff and the same type of defendants (media), as well as the amount of claims and the fact that all lawsuits have the same or similar factual basis, this event is very reminiscent of strategic lawsuits against public participation.
Finally, regardless of the fact that Serbia is not currently a member of the EU, we should use the wave of collective struggle against the SLAPP phenomenon and start amending the relevant laws, in order to react in time and enable the courts to adequately solve this problem. When amending the law, it is crucial to take care that anti-SLAPP provisions do not limit the right to access the court, as well as to prevent abuse of this institution by defendants. Once again, although EU decisions and acts are not legally binding for our country, it is worth recalling the position of the European Court of Human Rights that Article 10 of the European Convention on Human Rights, which is a source of law and is directly applied in our country, implies the positive obligation of the state to create a favorable environment and ambience for the participation of everyone in the public debate, as well as for expressing opinions and ideas without fear, even if they contradict the official views of the authorities or a significant part of public opinion or are provocative or shocking for them.
RECOMMENDATIONS
Based on the analyzes conducted by the "Slavko Ćuruvija" Foundation and the Independent Association of Journalists of Serbia (the latter in partnership with the ARTICLE 19 organizations and the Center for Human Rights of the American Bar Association), the following recommendations emerge:
• Retain the jurisdiction of one court in Serbia for dealing with media disputes, but establish a special department in which specialized judges, with a license, will judge, which must be regulated by the Law on Public Information and Media (PIA). According to the same principle, it is necessary to form specialized panels in the second-instance court. This will ensure a better quality of protection of citizens' rights and the efficiency of proceedings in this type of litigation.
• Provide continuous training on media disputes, media law, procedural rights and international standards for judges, lawyers and journalists through competent institutions.
• Provide the necessary number of judges and employees in the supporting services of the court in order to ensure compliance with legal deadlines.
• The amount of damages awarded must also depend on the frequency and repetition of violations of the rights of the same defendants in the lawsuits of the same plaintiff. This criterion should be included in the law (ZJIM) in order to suppress campaigns of intimidation, discrediting of personalities and hate speech. Doing so would reduce the possibility of SLAPP lawsuits.
• The practice of determining the violation of rights should be uniform, and the amount of damages must follow each specific factual basis to fulfill its purpose.
• In order to ensure real freedom of expression, media that continuously violate journalistic attention and the Code of Ethics of Journalists should be prevented from allocating budget funds intended for the co-financing of media projects, which contribute to the fact that these media use budget money to finance awarded damages without hindrance, thus calling into question the meaning of judicial protection as a whole.
• Revise the defamation provisions in the CPA and the Law on Obligations (ZOO) to ensure that protection is provided only for false factual allegations that cause significant damage to the claimant's reputation. The protection of vague concepts, such as piety and authenticity, should be eliminated.
• Some basic criteria for determining the amount of monetary compensation should be included in the provisions on legal remedies in cases of defamation according to the ZOO. Financial compensation that exceeds compensation for damage to reputation should be measures that are applied in exceptional cases, i.e. only when the plaintiff or claimant proves that the defendant knew that a certain claim was untrue and acted with the specific intent to harm the plaintiff or claimant. Monetary compensation must never be disproportionate to the damage done and should take into account non-monetary remedies such as publishing an apology or using the right of reply, as well as the amount of compensation awarded in other civil torts. When awarding monetary compensation, the real financial capabilities of the defendants should be taken into account.
• The Law on Obligations should determine the highest fixed amount of compensation that can be awarded for non-material damage to reputation - ie. damage that cannot be quantified in monetary terms, but the minimum amount of compensation for damage should not be determined by law. The maximum amount should be applied only in the most serious cases.
• Recognition of the functional nature of journalism should be strengthened. In particular, the provisions of Article 29 of the ZJIM should be broadly interpreted and include not only registered journalists but also all others who are regularly or professionally engaged in collecting and disseminating information to the public using any means of mass communication.
• The practice in which monetary damages are awarded in cases of defamation based only on the simple claim of the plaintiff that he experienced mental pain (according to Article 200 of the ZOO) should be eliminated. Damage caused to the reputation of a particular person must exceed a certain threshold before freedom of expression is restricted; namely, "serious harm" must be inflicted.
• When evaluating cases filed by public officials, politicians and public figures, the courts must bear in mind that these persons should have a greater tolerance for criticism than ordinary citizens, because they are still directly involved in affairs that concern the public.
• In their assessment of cases, the courts must ensure that no one is liable under the Defamation Act for expressing an opinion. Courts must consider all the circumstances of a statement, including the language and genre used, when assessing whether a statement is an opinion. When it is obvious that the audience will understand a statement in a humorous, provocative or satirical tone, then the statement must be considered an opinion.
The printing/design of this text was supported by the OSCE Mission in Serbia for the promotion of media freedom and the safety of journalists and to contribute to the further development of the media system in Serbia, which provides citizens with quality content of public interest.
The views expressed in the text belong exclusively to the authors and their collaborators and do not necessarily represent the official position of the OSCE Mission in Serbia.
The author of the part of the report of the "Slavko Ćuruvija" Foundation that refers to SLAPP lawsuits is Ana Zdravković.
