6. National authorities as well as international organisations have noted that measures are needed to combat this phenomenon the need to take action. In its January 2020 report entitled “Threats to media freedom and journalists’ security in Europe”, the Parliamentary Assembly identified several countries where this phenomenon has reached worrying proportions. In October 2020, the Commissioner for Human Rights of the Council of Europe called on States to tackle the problem. The partner organisations to the Council of Europe Platform to promote the protection of journalism and safety of journalists have regularly highlighted SLAPPs in their annual reports. The Committee of Ministers of the Council of Europe is also in the process of adopting a recommendation on the issue.

7. Moreover, the European Union institutions are drawing up a directive to protect victims of SLAPPs or abusive court proceedings with cross-border implications and anti-SLAPP laws have recently been adopted or are being drawn up in some Council of Europe member States.

8. The Assembly recalls that under Article 10 of the European Convention on Human Rights (ETS No. 5) member States not only must refrain from interfering with the right to freedom of expression, but they also have a positive obligation to ensure a safe and favourable environment for participation in public debate by everyone, without fear, even when their opinions run counter to those defended by official authorities or significant parts of the public.

9. The Assembly also refers to Recommendation CM/Rec(2016)4 of the Committee of Ministers to member States on the protection of journalism and safety of journalists and other media actors, whereby “[m]ember States must exercise vigilance to ensure that legislation and sanctions are not applied in a discriminatory or arbitrary fashion against journalists and other media actors. They should also take the necessary legislative and/or other measures to prevent the frivolous, vexatious or malicious use of the law and legal process to intimidate and silence journalists and other media actors”.

10. Similarly, Recommendation CM/Rec(2018)2 of the Committee of Ministers to member States on the roles and responsibilities of internet intermediaries calls on national authorities to consider adopting “appropriate legislation to prevent strategic lawsuits against public participation (SLAPP) or abusive and vexatious litigation against users, content providers and intermediaries which is intended to curtail the right to freedom of expression”.

11. The Assembly considers that there is now an urgent need for all Council of Europe member States to act in a co-ordinated manner to successfully combat the phenomenon of SLAPPs and calls on them to strengthen their legislation to enable judges to effectively punish the perpetrators of such abusive litigation, while ensuring that measures to address SLAPPs remain proportionate in the context of other rights protected under the European Convention on Human Rights, in particular the right to a fair trial (Article 6) and the right to respect for private and family life (Article 8).

12. To this end, where legal action is directed against a form of expression or public participation on a matter of public interest and has the effect of preventing, hindering or sanctioning it, national authorities should provide for:

12.1. a procedure for the early dismissal of a claim that is unfounded, abusive or would otherwise have a disproportionate impact, within a given time limit and based on specific criteria clearly defined in national legislation, including an appeal process conducted under an accelerated procedure;

12.2. effective case management, and secure procedural expediency, in order to avoid or minimise the length and cost of proceedings;

12.3. the burden of proof on the claimant to prove that their lawsuit is not a SLAPP, where the court considers it established that the case concerns a form of participation in public affairs or expression on a matter of public interest;

12.4. the consolidation of proceedings concerning the same publication or a substantially similar element of the same publication, to avoid exhausting the defendant with multiple procedures the main objective of which is to paralyse the dissemination of information of public interest;

12.5. a stay of proceedings and claims for compensation in the event of the defendant’s death;

12.6. determination of the court with territorial jurisdiction on the basis of the defendant’s domicile when the defendant is a private individual, if this does not contravene international obligations, or the legislation of the European Union where applicable, and in any case, the defendant’s access to appropriate remedies before the courts of the State where the action is brought;

12.7. the protection of journalists’ sources during the litigation, particularly from disclosure;

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