The wheels of Brussels turn slowly: MEP Jana Toom served as shadow rapporteur on the directive combating SLAPP suits four years ago and only now is this directive being transposed into Estonian law.
We asked Jana to tell us about the directive: what problems it addresses, what it affects.
– What exactly is SLAPP?
– It stands for ‘strategic lawsuits against public participation’. Let me start from the beginning: do you know what distinguishes a good film or TV series about journalists from a bad one? In a bad one, a journalist investigates something, follows someone, then sends the article to the editor – and the next day everyone learns the truth about a dodgy corporation, for example. But in a good film, one of the journalist’s main battles is with the legal department of their own media outlet. The lawyers might tell the editor-in-chief: no, we can’t publish this article, they’ll sue us – and we’ll lose. I know this because I myself was a journalist and editor-in-chief of a newspaper for many years. If you’re covering sensitive topics, you’re constantly in touch with the legal department.
In reality, when a journalist – or a human rights organisation – uncovers something unsavoury, the opposing side always threatens legal action. And if it’s a major corporation or an influential politician backed by a wealthy party, you’ll think twice about whether it’s worth getting involved with them. ‘You’ being not even the journalist, but the media outlet as a legal entity. The media, especially smaller outlets, usually have less money than big business. You might win in the end, but it will take several years – and in the process, you’ll go bankrupt.
– SLAPP – is that when rich people silence activists through the legal system?
– Yes. And often these are lawsuits that are known to be baseless or filed solely to target people. Let’s call a spade a spade: this isn’t a fair use of the legal system – it’s bullying, harassment, an attempt to censor someone. Often the attempt is successful – I repeat, corporations have far more money and resources than an ordinary journalist or activist. At the same time, SLAPPs undermine democracy, and with it the single market, for the functioning of which Brussels is responsible. Where there is no freedom of speech and corporations bend the judicial system to their will, there is no freedom of market relations either.
– Does this apply only to the media and NGOs?
– The list of SLAPP victims includes scientists, artists and, for example, whistleblowers who, at the risk of their careers, reveal the truth about their employers. Let me emphasise: we are talking about exposing abuses and crimes in areas such as fundamental human rights or the environment. This is information of public importance. If an employee tells a tabloid website that his boss is sleeping with his secretary, and the boss takes the ‘whistleblower’ to court, that is not a SLAPP issue.
– What exactly can be done about a SLAPP?
– The essence of the report, for which I was a shadow rapporteur and which is being implemented in Estonia, is procedural safeguards. The courts must have the power to prevent SLAPPs, to oblige a bad-faith claimant to pay all legal costs, and to punish them in some way. The victim may request that the SLAPP be dismissed as unfounded, and the burden of proof regarding the validity of the claim lies with the claimant. The state is obliged to do everything possible to exempt the defendant from legal costs.
– Are there any ‘buts’ here?
– The main ‘but’ is that the directive applies only to cross-border situations where two or more countries are involved. On the one hand, this is important because corporations have long arms and can file a claim in a jurisdiction that allows them to hit the victim harder. On the other hand, the directive does not interfere with legal proceedings where the claimant and defendant are from the same country and the claim concerns only that country. It is assumed that in a specific country, SLAPPs will be limited to that country itself.
– How did the European Parliament vote? Were many against it?
– Around fifty, with even fewer abstentions, whilst more than five hundred MEPs voted ‘for’. In May 2024, the rules protecting against SLAPPs came into force. Brussels has given us two years to transpose the rules into national legislation – meaning the deadline expires this May, and we must be fully prepared.
– Lawyer Martin Raude wrote in an opinion piece that Estonia doesn’t really need this directive – it isn’t such a significant problem here. Between 2010 and 2023, 1,049 cases of SLAPPs were recorded across Europe, of which only four were here...
– I don’t quite understand what ‘only’ means. Let’s do the maths: Estonia’s share of the EU population is 0.28%, yet we account for 0.38% of all SLAPPs. Our situation is worse than the EU average. Moreover, we’re only talking about identified SLAPPs. They’re identified where there’s greater effort to combat them. We haven’t done anything to combat them so far, so I think there have actually been more such cases. And we do need this directive after all – to help victims, to punish those who file SLAPPs, and, most importantly, for prevention. We have laws against crimes that are rarely or never committed here, but nobody says that these laws should be repealed. It works differently.
Photo: Alain ROLLAND / European Parliament