Halt legal intimidation of reporters, EU demands
The European Parliament has drawn up on how to strengthen democracy and media freedom and pluralism in the EU. The paper examines the undue use of legal actions under civil and criminal law to silence journalists, NGOs and civil society.
The authors have identified a 鈥榮ignificant gap鈥 in the integrity of the legal order of the EU, which requires robust legislative intervention.
says that Strategic Lawsuits Against Public Participation (SLAPPs) are legal actions used with the purpose of preventing reporting on:
- Breaches of EU and national law,
- Corruption or other fraudulent practices, and
- Blocking public participation and debate.
Key feature
鈥淭he key feature of SLAPPs is their tendency to transfer debate from the political to the legal sphere,鈥 the paper points out.
鈥淓nergy and resources are diverted from the relevant public-interest project to the lawsuit.
鈥淧rivate citizens, NGOs, journalists and small media outlets and civil society are likely to be intimidated by the large damages and expensive legal costs,鈥 it says. 鈥淏y inflicting these burdens on one subject, initiators of SLAPPs aim to discourage others from conducting future campaigns.鈥
Common target
鈥楢ffluent entities鈥 also set up funds to offset the costs of third parties willing to pursue litigation against a common target.
SLAPPs are characterised by abuse of process by a plaintiff, or excessive claims in matters in which the defendant is exercising a constitutionally protected right.
Legal victory seldomly materialises, but procedural costs and the threat of disproportionate damages have a broader 鈥榗hilling effect鈥, the paper says.
News Media Europe has examined the situation in Ireland, and has concluded that it is difficult to deal with strategic law suits separately from wider reform of the law of defamation.
While libel reform in the UK has ameliorated London鈥檚 position as the defamation capital of Europe, legal threats from wealthy litigants are successful in Ireland because of the onerous costs involved.
鈥楽trategic litigation鈥
鈥淪trategic litigation works in Ireland because the costs associated with defending actions and the financial consequences of defeat are so onerous,鈥 says media lawyer Michael Kealey (DMG Media).
鈥淲ith our Supreme Court having upheld an award of 鈧1.25 million for a bad 鈥 but not the most serious 鈥 defamation (even though that decision was , and with legal costs running into hundreds of thousands of euro, the media has become risk adverse,鈥 said Kealey.
鈥淭his is so, even with cases they feel they might win. There鈥檚 also the problem, possibly unique to Ireland, of impecunious plaintiffs suing so that the chances of recovery of costs, even in victory, is slight.
Even starker
鈥淭hese problems are even starker now because of the enormous financial pressures on the 鈥榯raditional media鈥 颅鈥 circulation and listenership is down, and the greater part of advertising funds is being diverted to Internet Service Providers who do not labour under the same legal constraints or responsibilities,鈥 he added.
Mr Kealey said that, in his view, the best way to deal with SLAPPs in Ireland would be in the context of reform of the . The promised statutory review of the Irish defamation law is now more than five years overdue.
The European Parliament study, commissioned by its Policy Department for Citizens鈥 Rights and Constitutional Affairs, at the request of the JURI Committee, analyses legal definitions of SLAPP, and assesses the compatibility of anti-SLAPP legislation with EU law.
Reforms sought
Print-media umbrella body NewsBrands Irelands has already called for the following reforms in Ireland:
- The abolition of civil juries to bring predictability to awards, and to reduce costs by shortening the length of trials,
- A cap, so that general damages in defamation cases could not exceed those in personal-injuries actions,
- The introduction of a 鈥榮erious-harm鈥 test, such as that operating in the UK, before a plaintiff would be entitled to sue, and
- Ensuring that news websites do not have liability for third-party commentary, so that the pitch is levelled with that enjoyed by the internet giants.
Vibrant civil society
The European Parliament paper reiterates that independent journalism and access to pluralistic information are key pillars of democracy, and that a vibrant civil society is essential for any democracy to thrive.
Retaliatory lawsuits deter freedom of expression on matters of public interest, and constitute a significant threat to the fulfilment of this obligation, the paper says.
By restricting scrutiny of matters of public interest, whether of economic or political concern, SLAPPs also have a deleterious effect on the functioning of the internal market, the paper states.