Council of Europe 

The basis for the Recommendation is to try and counter the threats that SLAPPs are posing in member States. The Recommendation was designed and passed as it was recognised that the threats SLAPPs were posing across member States were growing and they could, and have had, a profound impact on journalism and its ability to disseminate information. In the Recommendation’s Explanatory Memorandum, the following is noted:

SLAPPs have far-reaching consequences: they impede individual rights to expression whilst undermining the free exchange of ideas and information essential in a pluralistic society. SLAPPs can lead to self-censorship and a ‘chilling effect’ on free speech, as journalists or other affected parties withdraw investigations and publications fearing legal and financial consequences they cannot afford to bear. Media outlets and other actors may move away from lines of investigation expected to attract legal risk through intimidatory actions that are core to SLAPPs, such that the public loses access to information. Apart from direct harm caused to affected parties, SLAPPs can have important consequences in terms of shutting down debate on matters of public interest.

The Council of Europe’s Secretary General noted in her report, ‘State of Democracy, Human Rights and the Rule of Law‘ that legal guarantees are imperative to create the regulatory framework for the exercise of the right to freedom of expression, which is protected by Article 10 of the European Convention on Human Rights. Furthermore, the European Court of Human Rights has also emphasised the important role that journalism plays in society through case law over the years. While freedom of expression is not an absolute right and can be limited in certain circumstances as we have seen in other cases, such as those focusing on Article 8 and the right to private information. Nonetheless, SLAPPs pose a particular risk not only to Article 10, but to Article 6 (right to a fair trial); Article 8 (right to respect for private and family life); and Article 13 (right to an effect remedy). You can find out more about these rights and the threats that SLAPPs pose to them here.

Due to the fact that SLAPPs pose an infringement to the above rights, the Council of Europe focused on building on exisiting Recommendations to try and tackle them through the creaton of Recommendation CM/Rec(2024)2.

The Recommendation also builds on the case law from the European Court of Human Rights, which, throughout case law, has emphasised the importance of protecting journalism. For example, in Lingens v Austria [1986] (no.9815/82) it was held:

…the Court has to recall that freedom of expression, as secured in paragraph 1 of Article 10, constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 2, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness. These principles are of particular importance as far as the press is concerned [41].

Indeed, the important role of the press was also empahsised in the case of Bladet Tromsø and Stensaas v Norway [1999] (no.21980/93):

Moreover, whilst the mass media must not overstep the bounds imposed in the interests of the protection of the reputation of private individuals, it is incumbent on them to impart information and ideas concerning matters of public interest. Not only does the press have the task of imparting such information and ideas: the public also has a right to receive them. Consequently, in order to determine whether the interference was based on sufficient reasons which rendered it “necessary”, regard must be had to the public-interest aspect of the case [62].

There have been subsequent cases that have followed with the Court re-emphasising the important role that journalism plays in society and reasons why it should be protected. You can find out more about these judgments here.

Recommendation CM/Rec(2024)2 on countering the use of strategic lawsuits against public participation (SLAPPs) was adopted by the Committee of Ministers on 5 April 2024. The Recommendation defines SLAPPs as the following:

‘…legal actions that are threatened, initiated or pursued as a means of harassing or intimidating their target, and which seek to prevent, inhibit, restrict or penalise free expression on matters of public interest and the exercise of rights associated with public participation.’

The aim of the Recommendation, in its own words, is to achieve the following:

The central aim of this recommendation, protecting public pariticipation against SLAPPs and prevent the further use of SLAPPs in Council of Europe member States, is to be realised as part of member States’ fulfilment of their broader obligations under the Convention to ensure a safe and favourable environment for participation in public debate, which is an essential feature of pluralistic democratic socieities that fully respect the rule of law and human rights. The fulfilment of these obligations is guided by an awareness that a range of different kinds of threats have a chilling effect on participation in public debate and lead to self-censorship, thereby depriving socieities of the pluralistic offer of information and ideas that individuals need in order to make informed decisions. While action against SLAPPs is needed, a careful balance should also be struck between the parties concerned so as not to hamper the right of access to a court.

The Recommendation also gives advice on how SLAPPs can be reocgnised. The list of indicators are indicative of a SLAPP action, but they are not limited solely to the below:

a. the claimant tries to exploit an imbalance of power, such as their financial advantage or political or societal influence, to put pressure on the defendant;
b. the arguments put forward by the claimant are partially or fully unfounded;
c. the remedies requested by the claimant are disproportionate, excessive or unreasonable;
d. the claims amount to abuse of laws or procedures;
e. the claimant engages in procedural and litigation tactics designed to drive up costs for the defendant, such as delaying proceedings, selecting a forum that is unfavourable to public participation or vexatious to the defendant, provoking an onerous workload and pursuing appeals with little or no prospect of success;
f. the legal action deliberately targets individuals rather than the organisations responsible for the challenged action;
g. the legal action is accompanied by a public relations offensives designed to bully, discredit or intimidate actors participating in public debate or aimed at diverting attention from the substantial issue at stake;
h. the claimant or their representatives engage in legal intimidation, harassment or threats, or have a history of doing so;
i. the claimant or associated parties engage in multiple or co-ordinated or cross-border legal actions on the basis of the same set of facts or in relation to similar matters;
j. the claimant systematically refuses to engage with non-judicial mechanisms to resolve the claim.

It has been established in case law from the European Court of Human Rights that States have a positive obligation to ensure a safe and favourable media environment for participation in public debate by everyone. Indeed, this can be seen in numerous cases, including Khadija Ismayilova v Azerbaijan [2019] (no.65286/13 and 57270/14) where it was stated:

In particular, the positive obligations under Article 10 of the Convention require States to create, while establishing an effective system of protection of journalists, a favourable environment for participation in public debate by all the persons concerned, enabling them to express their opinions and ideas without fear, even if they run counter to those defended by the official authorities or by a significant part of public opinion, or even irritating or shocking the latter [158].

Based on this and the worrying rise of SLAPPs across member States, the Council of Europe, in the Recommendation, recommends that governments of member States undertake particular actions, which are listed below:

i. implement, as a matter of urgency and through all branches of State authorities within their competence, the guidelines set out in the appendix to this recommendation, taking full account of the principles included therein, in particular regarding structural and procedural safeguards, remedies, transparency, support for targets and victims, education, training, awareness raising as well as capacity building;

ii. pay specific attention to SLAPPs in the context of their reviews of relevant domestic laws, policies and practices, including in accordance with Recommendation CM/Rec(2016)4 on the protection of journalism and safety of journalists and other media actors, to ensure full conformity with member States’ obligations under the Convention;

iii. promote the goals of this recommendation at the national level, as well as in relevant European and international forums, and engage and co-operate with all interested parties to achieve these goals;

iv. regularly review the status of implementation of this recommendation with a view to enhancing its impact, in particular improving support mechanisms for targets and victims, and inform the Committee of Ministers about the measures taken by member States and other stakeholders, the progress achieved and any remaining shortcomings.

The Recommendation also states certain ways in which these goals can be achieved to counter the use of SLAPPs, including, but not limited to: the capping of damages; ensuring that SLAPP victims are acknowledged and that they are compensated; implementing mechanisms to ensure early dismissal of claims against public participation; implementing dissuasive measures to deter SLAPPs; supporting targets and victims of SLAPPs; and raising awareness of SLAPPs. You can find more information in the Recommendation here.

A Training Curriculum has also been developed and is available on the Council of Europe’s website. The Curriculum was produced to strengthen the knowledge of SLAPPs and how they should be countered. The Training Curriculum is focused on equipping judges and other legal professionals with the knowledge on how to recognise SLAPPs and how to apply European standards to deal with them. The Training Curriculum is designed to be delivered in an in-person format and can be downloaded for free. The Training Curriculum links to the Council of Europe’s efforts to counter SLAPPs. It can be found here.