Fighting SLAPPs: What Can Media, Lawyers, and Funders Do?
Date
Summary
"The global SLAPP crisis is posing a serious threat to the work of many journalists, activists, and independent media outlets."
Published by the Center for International Media Assistance at the National Endowment for Democracy (NED), this report looks at how strategic lawsuits against public participation (SLAPPs) are affecting the work of the media and what the media, the legal system, and funders can do about it. Besides legal reform, which can often take years to achieve, the report looks at several short-term tactics that journalists, activists, and defence lawyers can use to remove SLAPPs, including setting up mutual insurance mechanisms, pooling resources, and advocating for changes to court rules. These measures are intended to strengthen the resilience of independent media outlets and, as a carefully targeted package, they can also do much to alleviate the burden of defending SLAPPs.
As explained in the report, SLAPPs are "lawsuits taken against media organizations or activists with the sole purpose of silencing them. They typically involve a huge disparity in resources and the claimant’s tactic is to use the lawsuit, or threat of a lawsuit, to divert a journalist or media organization's resources. Cases are reported in increasing numbers across Europe, Africa, Asia, and the Americas. The damage done by SLAPPs is far-reaching and curbing it is an imperative for media freedom."
The report begins by looking at the countries and regions with the most SLAPPs, the general nature of SLAPPs, and the costs of SLAPPs. The countries with the most SLAPP cases between 2015 and 2021 are Thailand, Honduras, Peru, and the United States, and the majority of SLAPP cases concern defamation, which, according to the report, is an area of law that is easily exploited by claimants.
The report makes the point that there is no silver bullet to responding to SLAPPs; however, a contextually-tailored package of measures should be implemented to boost a media outlet's resilience in the face of legal harassment. The report outlines the following resolutions, together with examples from across the globe. They all require the support and cooperation of several stakeholders, including media development donors and lawyers, as well as journalists and activists:
The first area of solutions highlighted involves resourcing the media to resist SLAPPs. Options here include the development of insurance and legal defence funds. Legal defence funds, can, for example, be used to aid smaller less well-resourced media outlets, and can be used to pay for legal costs, bail, court fees, and even fines. Another option is pre-publication vetting, which identifies potential legal weaknesses in an article. Good pre-publication vetting requires a partnership between a lawyer and journalist, with the lawyer understanding the article that the journalist seeks to publish and the journalist seeing the lawyer as a partner. Pooling of resources, including legal resources, between media outlets is another option to help resource the media.
Other solutions are related to supporting innovative lawyering. For example, forging a new defence out of constitutional or international rights protections is a particularly powerful way of resisting a SLAPP lawsuit. A single positive judgment can introduce a new legal defence or provide for summary dismissal for an entire class of cases, benefiting not just the journalist or outlet in the case but a country's entire media. International human rights law provides another route through which innovative legal defences can be developed. Here, media development donors can support these initiatives through more than just direct funding. Supporting the development of media defence coalitions and facilitating the creation of peer learning spaces for the communities of public interest lawyers who take on SLAPPs cases are crucial to fighting these frivolous lawsuits.
Another way of fighting SLAPPs is for media outlets and journalists to speak out, build solidarity, and profile SLAPP claimants in order to resist the sometimes harsh and threatening legal tactics used to silence the media. Journalists could, for example, go public about the threat of a lawsuit against them. Doing so can create greater solidarity and garner support from activists and potential funders. Profiling companies that repeatedly bring SLAPP suits against journalists and activists can also shine a light on those who seek to abuse the legal system for their own gain.
Finally, the report looks at regulatory reform. It recommends changing court rules or introducing secondary legislation, as this can be done a lot more quickly than changing defamation or privacy laws. Examples include measures such as capping the cost of legal defence, capping the length of SLAPP proceedings or instituting early dismissal provisions, and expanding the availability of legal aid.
Published by the Center for International Media Assistance at the National Endowment for Democracy (NED), this report looks at how strategic lawsuits against public participation (SLAPPs) are affecting the work of the media and what the media, the legal system, and funders can do about it. Besides legal reform, which can often take years to achieve, the report looks at several short-term tactics that journalists, activists, and defence lawyers can use to remove SLAPPs, including setting up mutual insurance mechanisms, pooling resources, and advocating for changes to court rules. These measures are intended to strengthen the resilience of independent media outlets and, as a carefully targeted package, they can also do much to alleviate the burden of defending SLAPPs.
As explained in the report, SLAPPs are "lawsuits taken against media organizations or activists with the sole purpose of silencing them. They typically involve a huge disparity in resources and the claimant’s tactic is to use the lawsuit, or threat of a lawsuit, to divert a journalist or media organization's resources. Cases are reported in increasing numbers across Europe, Africa, Asia, and the Americas. The damage done by SLAPPs is far-reaching and curbing it is an imperative for media freedom."
The report begins by looking at the countries and regions with the most SLAPPs, the general nature of SLAPPs, and the costs of SLAPPs. The countries with the most SLAPP cases between 2015 and 2021 are Thailand, Honduras, Peru, and the United States, and the majority of SLAPP cases concern defamation, which, according to the report, is an area of law that is easily exploited by claimants.
The report makes the point that there is no silver bullet to responding to SLAPPs; however, a contextually-tailored package of measures should be implemented to boost a media outlet's resilience in the face of legal harassment. The report outlines the following resolutions, together with examples from across the globe. They all require the support and cooperation of several stakeholders, including media development donors and lawyers, as well as journalists and activists:
The first area of solutions highlighted involves resourcing the media to resist SLAPPs. Options here include the development of insurance and legal defence funds. Legal defence funds, can, for example, be used to aid smaller less well-resourced media outlets, and can be used to pay for legal costs, bail, court fees, and even fines. Another option is pre-publication vetting, which identifies potential legal weaknesses in an article. Good pre-publication vetting requires a partnership between a lawyer and journalist, with the lawyer understanding the article that the journalist seeks to publish and the journalist seeing the lawyer as a partner. Pooling of resources, including legal resources, between media outlets is another option to help resource the media.
Other solutions are related to supporting innovative lawyering. For example, forging a new defence out of constitutional or international rights protections is a particularly powerful way of resisting a SLAPP lawsuit. A single positive judgment can introduce a new legal defence or provide for summary dismissal for an entire class of cases, benefiting not just the journalist or outlet in the case but a country's entire media. International human rights law provides another route through which innovative legal defences can be developed. Here, media development donors can support these initiatives through more than just direct funding. Supporting the development of media defence coalitions and facilitating the creation of peer learning spaces for the communities of public interest lawyers who take on SLAPPs cases are crucial to fighting these frivolous lawsuits.
Another way of fighting SLAPPs is for media outlets and journalists to speak out, build solidarity, and profile SLAPP claimants in order to resist the sometimes harsh and threatening legal tactics used to silence the media. Journalists could, for example, go public about the threat of a lawsuit against them. Doing so can create greater solidarity and garner support from activists and potential funders. Profiling companies that repeatedly bring SLAPP suits against journalists and activists can also shine a light on those who seek to abuse the legal system for their own gain.
Finally, the report looks at regulatory reform. It recommends changing court rules or introducing secondary legislation, as this can be done a lot more quickly than changing defamation or privacy laws. Examples include measures such as capping the cost of legal defence, capping the length of SLAPP proceedings or instituting early dismissal provisions, and expanding the availability of legal aid.
Source
CIMA website, March 24 2023. Image credit: CIMA
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