SLAPPs: 2022 record year for number of abusive lawsuits filed

Some 161 abusive lawsuits were filed in European countries in 2022, the highest number mapped in a single year according to a report published on Wednesday (23 August) by the Coalition Against SLAPPs in Europe (CASE).

A strategic lawsuit against public participation (SLAPP) is a case launched by a powerful actor against a journalist, media group, rights watchdog or individual to drain the defendants’ time and resources, silence their work and avoid public scrutiny.

The report produced by CASE, a coalition of NGOs and legal experts, in partnership with the Daphne Caruana Galizia Foundation, updates the organisations’ previous research released in March 2022, which identified a total of 570 SLAPPs in Europe since 2010.

“The findings of CASE’s current report underscore the importance and urgency of anti-SLAPP protection measures, particularly robust legislation providing a strong safety shield on both national and, in the case of cross-border SLAPPs, international levels,” the report said.

Wednesday’s report added a further 250 lawsuits, of which 161 were filed in 2022, bringing the total number of lawsuits on CASE’s database to 820. As such, 2022 saw the largest number of recorded SLAPP lawsuits filed in Europe, up from 135 in 2021.

However, the lawsuits identified and analysed in the study are only a snapshot of the real number, the authors highlight.

“Europe’s SLAPP problem is broader than the extent CASE has been able to identify and report through its mapping initiatives so far,” the report notes, adding that much information about lawsuits is not publicly accessible and victims of lawsuits choose not to report their experiences due to fear of further retaliation.

Findings

Targets of SLAPP cases are individuals as opposed to organisations in the vast majority of cases. Individual journalists remain the most likely targets of SLAPPs (30%), followed by media outlets (25%), editors (12%), activists (10%) and NGOs (5%).

Businesses or businesspersons continue to file the most SLAPP lawsuits, followed by politicians or public services and state-owned entities. Defamation remains the dominant legal basis, accounting for 590 out of 820 cases (72%).

Corruption, government, business and environmental issues remain the topics most commonly on the receiving end of abusive litigation.

Demands in the value of damages varied widely across cases mapped in 2022, the largest claim being against Spanish newspaper El Confidencial by energy company Iberdrola for EUR17.6 million on the grounds of alleged reputational damage. The lowest was a symbolic EUR1.

The report notes that while “the chilling effect of a lawsuit increases the more exorbitant the value of damages, the latter is not the only factor that contributes to such a stifling effect”, citing legal expenses, the number of cases filed and time spent on cases as other costly factors.

The median value of damages claimed was EUR15,150, and the average was EUR360,659. In 8% of cases in 2022, defendants faced criminal repercussions, such as imprisonment.

The updated report also added six more European countries in which lawsuits have been filed – Georgia, North Macedonia, Greece, Cyprus, Moldova, Czech Republic and Sweden – expanding the data collection area to cover 35 countries.

Scope for EU-level protection

One in 10 of the lawsuits identified between 2010 and 2022 were ‘cross-border’ according to the traditional definition of the term – that the plaintiff and defendant are domiciled in different countries – reflecting the dominance of exclusively-domestic lawsuits, CASE found.

The definition of what constitutes a ‘cross-border’ case – a prerequisite for lawsuits to fall in the scope of the upcoming EU Anti-SLAPP Directive as exclusively-domestic cases remain a member state competence – has been a point of contention between EU institutions.

Member states have pushed for a more conservative definition, while the Commission and the Parliament supported a wider understanding of what constitutes cross-border.

Rapporteur for the Parliament’s draft text MEP Tiemo W?lken (S&D) told EURACTIV in an interview in July that expanding the definition of cross-border cases will be a priority for the Parliament’s negotiators as the directive enters trilogues or inter-institutional negotiations.

“At the end of the day, [the goal of the negotiations is] to have a good scope of application, that is, to define cross-border reference reasonably and that we can actually offer support to the victims and that we get a political commitment to apply the rules that apply to EU cases also nationally,” W?lken said.

[Edited by Alice Taylor]