Increase in Number of SLAPPs in Croatia Sparks Concerns over Free Speech
Author: Margareta Ana Baksa
Department: Europe Team
Daphne Caruana Galizia was facing over 40 lawsuits in Malta when she was murdered by a car bomb in 2017. She was one of many journalists targeted by lawsuits meant to intimidate, harass, and silence those speaking out on public matters before the harassment escalated from lawsuits to a seemingly arranged murder (Mijatović, 2020). Free speech and democratic values may be at risk in Europe, and while there are several references to this danger in European Parliament resolutions and reports of watchdogs and journalist organisations, there is still no protection for journalists that are affected. These dangers are known as Strategic Lawsuits Against Public Participation (SLAPPs) and they are a threat on the rise, according to a report published by CASE, the Coalition Against SLAPPs in Europe (CASE, 2022). This article will focus on SLAPPs in Croatia, as the country is amongst those with the highest numbers of SLAPPs per year, alongside Malta, Slovenia, and Ireland (Grgurinovic, 2022).
What are SLAPPs?
Strategic lawsuits against public participation are lawsuits against some form of public participation. They are usually initiated by corporations or individuals against weaker parties, including journalists, activists, or civil society organisations (Bayer et al., 2021). The goal of a SLAPP is not to win the case in a court of law, but to intimidate and exhaust the resources of the individual or organisation against which a SLAPP is brought (Bárd, 2020). These lawsuits are sometimes brought on the grounds of alleged defamation or privacy concerns (CASE, n.d.). In order to see whether one case is part of a SLAPP, one needs to pay attention to the following conditions, as mentioned by CASE: Is the legal action brought by a private party, including government officials acting in a private capacity? Does the legal action target acts of public participation? This includes journalism, whistleblowing, advocacy, peaceful protests, and similar endeavours.
If the answers to these two questions are yes, the third question follows: Is the action brought with the purpose of silencing or discouraging such acts of public participation? Whether that is the case can be seen through various signs: the arguments used by the plaintiff are baseless; The requested remuneration for the alleged harm is disproportionate or aggressive; the plaintiff is exploiting their economic advantage over the defendant; or the lawsuit is a part of a larger campaign against the defendant, with the goal of intimidating or silencing the defendant. These are all signs pointing towards an effort to engage in what can be seen as a form of modern censorship (Grgurinovic, 2022). An example of how SLAPPs function is the case of Mineco v. Krik, wherein Mineco, an international mining company, sued the Serbian newspaper KRIK. The lawsuit was brought on grounds of defamation due to articles published wherein the company’s bribery and fraud were discussed. The company requested around $500,000 of damages (Bonello Ghio, 2022).
This cessation of public criticism of an issue is known as a SLAPP’s ‘chilling effect. It is only one of the ways SLAPPs infringe on public action, and, as a result, democratic values and free speech (CASE, 2022)
SLAPPs may also infringe on the rights to assembly or association, as the visible economic and emotional damage suffered by defendants in the lawsuits may discourage others from engaging in similar endeavours. Such intimidation through legal means infringes not only on the right of the individual to speak out on issues of public concern, but also prevents people from learning and being informed on topics relevant to their daily life, and thus inhibits them from making informed choices important to the functioning and values of a democracy (Bayer et al., 2021). As stated by Baroness Hale of Richmond,
“The free exchange of information and ideas on matters relevant to the organisation of the economic, social and political life of the country is crucial to any democracy. Without this, it can scarcely be called a democracy at all. […] This includes revealing information about public figures, especially those in elective office, which would otherwise be private but is relevant to their participation in public life.” (Bonello Ghio, 2022).
SLAPPs in Croatia
For a country of only about four million, the number of SLAPPs is worrying – there is an average of 0.6 SLAPP cases per 100,000 citizens in Croatia, with over 900 active cases as of 2021 (CASE, 2022). One news portal, Index.hr, faced over 60 such lawsuits for alleged defamation, including nine against individual journalists and 56 against the whole portal. The plaintiffs in the majority of these SLAPPs are current or former politicians and public officials (Bonello Ghio et al., 2022). In the past, plaintiffs included the likes of the Croatian public broadcasting company HRT, which has itself filed over 36 lawsuits, some against its own journalists. This includes cases against its former employee Hrvoje Zovko, the president of the Croatian Journalists Association HND (Bonello Ghio et al., 2022). His case is particularly ironic considering that the SLAPPs sought to silence Zovko’s own criticism of the broadcaster, including his claims of censorship (Vladisavljevic, 2019). One case brought by businessman Josip Stojanović Jolly requested damages of over €300,000 for alleged damage to reputation as the result of one article published on the portal Telegram (Grgurinovic, 2022), and as of 2021, active SLAPPs sought a combined remuneration of over €10,000,000 (Pavelić, 2021). While only around one out of ten journalists is eventually convicted, the number of SLAPPs and the disproportionate requested payment serves to intimidate journalists from speaking out.
Journalists are not the only group targeted by SLAPPs in Croatia. Civil society organisations are also targets, as the example of a lawsuit against two such organisations, Srđ je Naš [Srđ is ours] and Friends of the Earth Croatia showcases. The SLAPP was brought by a manufacturing company when the organisations opposed the building of a luxury golf resort (Bonello Ghio, 2022). Despite not having official building permits, the company decided to bring a lawsuit for alleged defamation against the civil society organisations for a billboard that publicly criticised the project, sued the president and vice-presidents of the organisations for libel, and requested damages amounting to €30,000 (Friends of the Earth Europe, 2018). The civil society organisations, in response, said that the lawsuit threatens their further functioning and existence, as the requested amount is more than they could pay (D.V., 2021). The criticism of the project was not just a concern of the organisation, but a shared concern of the entire community – a referendum showed that 84 percent of the community opposed the project (Red Carpet Courts, n.d.).
The rights of journalists as well as the freedom of expression are not infringed upon by any one law in Croatia; both the Croatian Media law and the Civil Code are in line with the ECHR and ECtHR jurisprudence (Bayer et al., 2021). Rather, plaintiffs benefit from the lack of regulation of SLAPPs and from the lack of protection for journalists and activists both at the national level and at the level of the European Union. Moreover, as reports commissioned by the EU Parliament and Commission show, existing legislation, albeit in conformity with human rights standards such as in the case of Croatia, often does not adequately protect the rights enshrined in them and in international human rights provisions (CASE, 2022; Bonello Ghio, 2021). Meanwhile, the SLAPPs threaten democracy and free speech in a country where these are already at risk, and the recent increase in the number of SLAPPs in the EU only increases these worries (CASE, 2022).
If the lack of protection for journalists, activists, and civil society organisations both in Croatia and in Europe more broadly continues, the right to freedom of expression and assembly will remain at risk. The positive obligation of States to ensure that their citizens’ rights to freedom of expression are respected, as laid out in Article 10 of the European Convention on Human Rights, requires an adequate response and the creation of legislative and non-legislative measures in order to limit the use of SLAPPs. An anti-SLAPP directive, such as the one proposed by the European Parliament, should be adopted and its full implementation should be ensured by EU Member States (CASE, 2022; Borg-Barthet, 2021). Croatia is just one of the many countries where journalists are at risk: In Italy, for example, one journalist was sued over 120 times using SLAPPs, while three journalists in Slovenia working for the same news outlet each faced 13 strategic lawsuits (Mijatović, 2020). It is the duty of the Croatian State, but also of the European Union, to promote freedom of speech and actively work towards regulating infringements to it.
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