ECtHR refers to SLAPPs, says public authorities can’t justify defamation claims against media

In a landmark decision related to a civil defamation suit brought by the Russian state against media company OOO Memo, the European Court of Human Rights (ECtHR) decreed that the proceedings were not “a legitimate aim” and interfered with the company’s freedom of expression, referring to SLAPP suits in its judgement for the first time in the court’s history.

The ECtHR’s ruling primarily argued that public authorities should not be allowed to institute illegitimate defamation suits against members of the media as this would place a disproportionate burden on outlets seeking to inform the public of any wrongdoing.

“When a public authority (and not its individual officials) resorts to defamation proceedings in relation to criticism by the media, it is incumbent on the domestic courts examining institutional defamation claims to provide compelling reasons capable of demonstrating convincingly that members of the media acted in bad faith or in flagrant disregard of the tenets of responsible journalism when making allegedly defamatory statements,” the court’s ruling reads.

“Any failure to do so would run contrary to the positive obligations under Article 10 of the Convention requiring States to create a favourable environment for participation in public debate by all persons concerned, enabling them to express their opinions and ideas without fear,” the ruling continues.

OOO Memo are the founders of the Caucasian Knot, an online portal which covers political and human rights issues in the south of Russia.

The civil defamation suit was instituted by Volgograd’s regional authority following the portal’s criticism over the suspension of subsidies meant to go to the town of Volgograd, seeking retraction of the article over perceived reputation damage.

While Russian courts had repeatedly ordered OOO Memo to comply, the ECtHR ruled that the interference amounted to a breach of Article 10 of the European Convention on Human Rights.

The judgement comes in the wake of multiple reports by European authorities and watchdog bodies sounding the alarm over legal action being taken to silence dissident voices across the EU.

In fact, the judgement itself quotes statements made by the Council of Europe’s Commissioner for Human Rights, Dunja Mijatović, about how SLAPPs are “purely vexatious in nature” and are used as a tactic to “stifle legitimate criticism”.

Recent reports compiled by press freedom watchdogs Article 19 and The Coalition Against SLAPPs in Europe (CASE) further highlighted a marked increase in SLAPP suits in the EU, referring specifically to cases instituted against The Shift News and other media outlets in Malta.

CASE’s report referred to Malta’s “culture of filing legal complaints to stifle criticism,” citing the unprecedented request made by lawyer Joe Gerada to the Information and Data Protection Appeals Tribunal against The Shift’s freedom of information requests on public contracts awarded to him as an example.

Referring to cases still pending in court, the report compiled by Article 19 details how The Shift’s editor Caroline Muscat and Matthew Caruana Galizia are facing a 2020 defamation suit from the owners of E&S Consultancy Ltd over Tweets posted by Muscat and Caruana Galizia which linked the consultancy firm with Marian Kočner.

Kočner is the man charged with commissioning the deaths of Slovak journalist Ján Kuciak and his fiancée Martina Kušnírová.