Oteli ste medije novinarstvo ne damo (“You took over the media, we won’t give up journalism”) read a banner at a 2019 protest in Zagreb organised by the Croatian Journalists’ Association against the wave of legal actions brought against reporters across Croatia. A poll co-ordinated by the journalists’ association identified over 1,000 legal actions or threats brought against media outlets and journalists by politicians, businesses (including the Croatian public broadcaster) and public figures. Talking to Deutche Welle, Robert Mihaljevic, editor-in-chief of the regional newspaper Podravski said, "The local courts are teamed with political strongmen trying to silence every critical voice."

Take a moment and let that number sink in. Over one thousand threats of lengthy and costly court proceedings hanging over journalists’ heads, in a country of just four million people.

While this number is shocking, it is emblematic of a growing trend across Europe; the use of Strategic Lawsuits Against Public Participation – sometimes known as SLAPPs – to threaten and silence critical reporting. These can take many forms, abusing laws such as defamation, privacy or media regulation to restrict critical coverage.

Greenpeace International and the University of Amsterdam define a SLAPP as “a lawsuit brought by a private individual (including those brought by public officials acting in a private capacity) with the intention of shutting down acts of public participation”, which can encompass a range of activities, from peaceful protest to writing blogs.

Power, influence and wealth keen to remain in the shadows create ideal habitat for SLAPPs. Malta is perhaps the iconic example. When she was assassinated, the investigative journalist Daphne Caruana Galizia was facing over 40 defamation actions, many brought by prominent business owners and politicians. Even after her death, her grieving family are having to defend over 30 legal actions.

It’s not just them. Maltese blogger Manuel Delia and Times of Malta, face legal proceedings in Bulgaria. Both have been sued for defamation by Christo Georgiev, Bulgarian co-owner of the Maltese bank, Satabank. Georgiev filed the lawsuits in Bulgaria before the Regional Court in Varna. The Satabank co-owner is demanding that the contested articles be removed from the respective sites and that he should be awarded damages of €10,000 by Times of Malta and €2,500 by Delia.

Behaviours like this are not isolated to Malta. Polish newspaper Gazeta Wyborcza has made its name scrutinising the powerful. As a result, the outlet and its journalists have faced numerous legal threats, many from the governing Law and Justice Party, the state television broadcaster, and the Polish mining company KGHM. 

A recent reprivatisation scandal in Warsaw, the quality of COVID-19 facemasks bought from China, alleged censorship of a music festival, a business relationship between the Law and Justice Party leader and an Austrian businessman: each story they’re being threatened over represents a dire need for accountability. 

But if media outlets, journalists and publishers are unable to provide this function due to the existential threats of legal action, who will?

The French journalist Inès Léraud has been dogged with legal threats for her reporting on the agri-business giant, Chéritel Group, and SumOfUs for faced court action for hosting a petition calling on PayPal to shut down accounts used by neo-Nazi groups in Germany.

And these are just the examples we know about. Many are hidden behind impervious shields of legal jeopardy and media outlets’ ever-diminishing access to legal representation. However, we can say one thing with certainty. What they all have in common is the unifying and inescapable influence of wealth.

In 1989, sociologist Penelope Canan explored the societal impact of SLAPPs on broader democratic processes and wrote: “Each SLAPP is a window on the relationship between democratic structures and judicial rules. It is a window on the link between political tolerance and economic dominance, and a window on the tension between constitutionalism and capitalism”. Nothing much has changed since then, but there are glimmers of hope. 

In June 2020, the Italian Constitutional Court gave the country’s parliament one year to abolish prison sentences for criminal defamation for journalism. This is an important, if partial, victory which hopefully opens the door for a more meaningful reform in Italy. 

But when we take two steps forward we often take one step back. In Malta, Magistrate Joe Mifsud recently recommended the reintroduction of criminal defamation to “protect state operatives from false allegations”. 

We’re fighting back against the threats: the Media Freedom Rapid Response offers support to journalists facing legal threats in EU member states and candidate countries.

But this is not enough. Europe needs serious changes to ensure media freedom is adequately protected. This year, civil society and press freedom organisations have called on the European Commission to take action. 

An anti-SLAPP directive could establish an EU-wide minimum standard of protection for journalists and civil society by sanctioning claimants bringing abusive lawsuits. It could establish safeguards for SLAPP victims, including the ability to contest the admissibility of certain claims, as well as rules that require the plaintiff to demonstrate a reasonable probability of success. 

Right now, those who want to shut journalists up are able to shop around Europe for a legal jurisdiction that suits them. Amending existing EU legislation  would both remove the ability of pursuers to choose courts that have little connection to the dispute, and establish protections against the application of ‘the lowest common denominator of press freedoms’ in cross-border journalistic disputes. 

Something needs to be done. Without meaningful and substantial changes on a national and EU-wide level, media freedom will always be torn between constitutionalism and capitalism, without any idea which force will win. But while this plays out across every country, in every newsroom, we cannot forget the impact that SLAPPs have on individual journalists. 

In Zagreb in 2019, Robert Mihaljevic highlighted the impact these laws can have: "you can feel the need to self-censor in our newsroom. I don't even write my column anymore, because if I write it the way I want, lawsuits and compensation claims would endanger our jobs."

Cases of criminal and civil defamation, or civil lawsuits such as SLAPPs, can be reported at mappingmediafreedom.org. The Media Freedom Rapid Response (MFRR) also provides financial legal support for journalists, media workers and media outlets. For further information on legal aid please visit their website or contact ECPMF on [email protected]