Council of Europe Endorses Recommendations on Countering the Use of SLAPPs

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Ms Dominique Hasler, President of the Committee of Ministers, Council of Europe

The Committee of Ministers of the Council of Europe on April 5, 2024, took a significant step towards safeguarding freedom of expression and the right to information by adopting a recommendation aimed at countering the use of Strategic Lawsuits Against Public Participation (SLAPPs) to stifle journalism practice.

SLAPPs are legal actions that are often employed to intimidate, silence, or burden individuals, journalists, activists, or organizations who speak out on matters of public interest. These lawsuits can be costly, time-consuming, and damaging to those targeted, often causing them to self-censor or abandon their pursuits.

The Committee recommendation emphasizes the significance of public participation and public interest, which it said, should be broadly interpreted to include everyone’s democratic right to engage in public debate and public affairs, both online and offline, without any form of fear or discrimination.

It is important to note that under CM/Rec(2024)2, the phrase “everyone” refers to all public watchdogs and contributors to public debate, as well as all participants in public affairs. It is not restricted to journalists and media actors alone but applies to all critical voices, including civil society organizations, environmental associations and activists, academics, and human rights defenders.

The Committee guidelines provided are meant to be applicable to civil lawsuits, administrative and criminal law contexts, and legal intimidation tactics. The recommendations cover both domestic and foreign Strategic Lawsuits Against Public Participation (SLAPPs), including cross-border, multiple, or coordinated SLAPPs targeting anonymous public participation.

To help identify SLAPPs, the recommendation lists 10 indicators, including the exploitation of an imbalance of power, the partial or full unfoundedness of the arguments made by the claimant, the request for disproportionate, excessive, or unreasonable remedies, and the use of delaying tactics.

The recommendation advises governments of the member States to reinforce their existing legislative and policy frameworks to combat SLAPPs including by implementing structural and procedural safeguards, providing remedies, increasing transparency, offering support for targets and victims; and developing education, training, and awareness-raising programmes. Additionally, an Explanatory Memorandum accompanies the Recommendation, which explains the context, reasoning, and practical examples that are useful for understanding and implementing the recommendation.