Council of Europe issues Recommendation on SLAPPs

Hot on the heels of the EU's new Anti-SLAPP Directive, the Council of Europe has issued a Recommendation that also tackles the issue of strategic lawsuits against public participation (SLAPPs). This marks a significant achievement for the civil society organisations that have been working on this issue for the past few years, and pressing the case in the European institutions that legislation to tackle it is necessary.

SLAPPs are intimidating or nuisance lawsuits, often launched by wealthy individuals or corporatons, aimed at journalists, activists, non-governmental organisations, academics and others engaged in political speech. SLAPP suits are intended primarily to stop that speech, rather than vindicate a legal claim.

Many SLAPP suits fail in court, but not before they have caused their targets to expend time and money in defending themselves. The psychological toil exacted by this kind of legal action can also be significant. Many are concerned that, seeing the damage that SLAPP suits can cause, they exert a chilling effect on others, dissuading them from engaging in contentious issues or speaking out against powerful people.

While the Recommendation - to give its full title, Recommendation CM/Rec(2024)of the Committee of Ministers to member States on countering the use of strategic lawsuits against public participation (SLAPPs), does not have binding force, it is a powerful motivator for change across the 46 states who are members of the Council of Europe.

In some ways, the new Recommendation is more far-reaching than the new EU Directive, covering SLAPPs that emerge in a purely domestic context as well as cross-border cases. It also encompasses criminal and administrative suits that bear the hallmarks of SLAPPs, not just civil ones.

The Recommendation enjoins Council of Europe member states to review their domestic legislation in right of their duty to ensure that everyone can participate in public debate. It includes a host of other recommendations, including the provision of training to legal professionals. Through Blueprint's work on the PATFox project, we know exactly how valuable this is. The final version of the text incorporates several of the points raised by the PATFox consortium in our response to a public consultation.

The Recommendation is part of a wider move within the Council of Europe's institutions to recognise the danger that SLAPPs pose to freedom of expression rights and the strength of democratic societies. In 2020, the European Court of Human Rights in Strasbourg noted "the growing awareness of the risks that court proceedings instituted with a view to limiting public participation bring for democracy... in view of the power imbalance between the claimant and the defendant." The outgoing Human Rights Commissioner of the Council of Europe, Dunja Mijatovic, has also been vocal in the need to challenge SLAPPs.

"It is high time to tackle a practice which puts pressure both on journalists and on civil society as a whole and dissuades them from critical reporting. This is all the more important at a time when access to information is under strain, with governments seizing emergency powers to ban assemblies, reducing the ability of NGOs and journalists to do field work and sometimes also reining in critical media.

"While this practice primarily affects the right to freedom of expression, it also has a dramatic impact on public interest activities more broadly: it discourages the exercise of other fundamental freedoms such as the right to freedom of assembly and association and undermines the work of human rights defenders."

The new Recommendation is an important step towards achieving that goal.