The Role of Justice Actors Combatting SLAPPs

On November 7th, 2024, the American Bar Association Centre for Human Rights and the UN Special Rapporteur on the Independence of Judges and Lawyers hosted a joint online conference – The Role of Justice Actors Combatting SLAPPs – covering the eponymous theme through a small yet assorted panel of speakers each treating the core topic from their own perspective in relation to their professional experience.

In particular, the Associate Director of the American Bar Association Centre for Human Rights – ABA CHR – Ginna Anderson moderated the conference, whilst amongst the panelists figured Prof. Margaret Satterthwaite – UN Special Rapporteur on the Independence of Judges and Lawyers –, Hon. Judge Fernando Henrique de Oliveira Biolcati – Court of Justice São Paulo, Columbia Global freedom of expression expert –, Charlie Holt – representing the Coalition Against SLAPPs in Europe, European Lead for the Global Climate Legal Defense –, and Zamira Djabarova – Senior Legal Advisor for ABA CHR.

In the first panel of the conference, Margaret Satterthwaite provided an overview of her recent thematic report to the UN General Assembly – Justice is not for sale: the improper influence of economic actors on the judiciary – examining the ranges of underlying efforts in terms of powerful economic actors striving to exert it on either the structure of justice systems or the relative functions.
After briefly recalling the exemplary avenues through which improper influence is wielded – from organised efforts to influence selection or action of judges to the resorting to SLAPPs, Satterthwaite referred to the latter as «a stark illustration of attempted weaponization of justice systems to serve private interests at the expense of legitimate human rights objectives». Additionally, she provided three key elements to identify SLAPPs, respectively identified as follows:

• an imbalance in political or social power where the plaintiff presents a privileged situation compared to the defendant;
• an abuse of legal tactics, ranging from disproportionate or straight out excessive claims to filing multiple legal cases in more than one forum or jurisdiction, all to maximise the impact on SLAPP targets;
• targeting actions or expressions of opinion configuring a form of public participation in relation to matters of public concern.

Amongst the main findings of the report, Satterthwaite highlighted a growth in the amount of SLAPP cases – a recurring theme – as well as the subsequent recommendations directed at prosecutors and judges; in these context, it was emphasised that knowledge as well as effective resorting to all relevant tools for early identification and dismissal of SLAPP cases is a core priority.

Hon. Judge Fernando Henrique de Oliveira Biolcati also provided a synthetic overview of main indicators for justice actors to use in detecting typical SLAPP features in a case:

• as for the parties involved, he mentioned politicians, public figures, government bodies or large corporations acting as plaintiffs against journalists, media outlets, activists, or NGOs who find themselves in the role of defendants;
• claims arising from opinion or reports articulated by the defendant on matters of public concern related to the activities of the plaintiff. Common allegations, among others, encompass violations of honour, reputation, or privacy;
• a pattern of repetitive litigation in place, where several cases are filed on similar grounds against more than one defendant;
• as for demands, an exorbitant moral damage compensation that exceeds the typical request for similar violations – or seeking injunctive relief;
• multiple cases filed on the same facts contested – against the same defendant.

Although the panel focused more on the Brazilian experience, in particular on the strategies the local judiciary are employing to cope with the issue of SLAPPs in the absence of a specific legal framework through existing provisions of the Brazilian code of civil procedure, best practices and relevant procedural tools employed are often viable in other contexts as  well. In this regard, Hon. Judge Biolcati stressed more practical themes from the perspective of the judicial management of SLAPP cases.  He recalled how the recognition of evident judicial harassment in place lies within the prerogatives of the Brazilian supreme federal court, which entails the relative set of procedural safeguards, as well as the requirement of either clear intent or gross negligence – i.e. overt failure in fact-checking – due in the establishment of liability of indicted journalists or media organisation.

The panel also briefly covered the recently issued recommendations on abusive litigation from the Brazilian National Council of Justice, such as:

• cases not meeting the requirement of a concrete motivation for the prevalence of plaintiff interests over freedom of expression may be dismissed;
• consolidation of multiple suits in the home jurisdiction of the defendant may be opted for;
• burden of proof may be reversed;
• preliminary hearings and procedural checks may be employed to assess legal validity of the claims as well as good faith of the plaintiff; 
• a particularly cautious stance should be taken in terms of reliance on expert analysis bearing the risk of shifting focus away from freedom of expression in favour of technicalities – thus enabling potential harassing intent;
• compensation in favour of the defendant – within proportionality margins – may be imposed to the plaintiff;
• in case of loss, the plaintiff may be ordered to pay litigation costs as well as attorney fees – where partial, in proportion to the outcome;
• judges should inform professional associations about individual lawyers or legal firms that engage in abusive litigation practices.

Following a brief account of the work within the Coalition Against SLAPPs in Europe, Charlie Holt shifted back to the main focus of the panels, noting a consistent pattern CASE had soon detected in its monitoring pertained to the same legal actors engaging in distinct SLAPP cases – particularly in common law jurisdictions where a normalisation of oppressive legal conduct calls for a cultural shift as well as a clear set of reference standards to detect SLAPP elements, providing constructive guidance to lawyers in terms of related legal ethics.

In particular, Holt emphasised the problematic character of enabling SLAPP cases through assisting as well as employing legal tactics as to intimidate or harass the defendant or to deplete their resources. He also pointed out that although legal actors are not to identify with the interests of their clients or with them altogether, they are to associate with and to be held accountable for the tactics employed on behalf of their clients.

In this context, Holt recalled how lawyers owe ethical obligations to stakeholders beyond their clients alone, from the court to the justice system; in case a conflict exists between the parallel duties for the client as it opposes to those for the court – i.e. frivolous or vexatious claims, potential misleading –, the latter should prevail – consistently with the role of the lawyer as a custodian of the rule of law. As Holt highlighted, the prioritisation of the integrity of the court and of the broader interest of justice is in line with common established norms that prohibit abuse of process.

Finally, Zamira Djabarova presented the ABA resolution passed in August 2024 urging lawyers and law firms to refrain from contributing to adverse impacts on human rights in the representation of business actors, within the framework of the pertaining UN guidelines in the following areas:

• broader than due diligence role of lawyers on informing clients on applicable human rights standards in business activities;
• supporting assisted businesses to embed human rights standards into due diligence processes, stakeholder engagement, setup of remedies for impacted subjects;
• labour rights, namely in terms of specific workplace requirements or freedom of association issues – e.g.: not engaging in union busting practices, advising clients on pertinent standards;
• strategic lawsuits against public participation – SLAPPs –, from which the lawyers are urged to abstain, not merely in the sense of filing lawsuits, yet crucially in the sense of employing typical SLAPP tactics.

The brief illustration of the entirety of the four core focus points of the ABA resolution shed light on the deep intertwinement of the SLAPP element with the broader human rights theme, as SLAPP cases entail negative impact on human rights, including in an indirect manner as i.e. freedom of expression or association is targeted through the lawsuit.

Consistent with the logic of constructive engagement with legal actors, Djabarova also mentioned the report accompanying the resolution also features a set of self-assessment questions for lawyers to determine whether assisted cases might qualify as a SLAPP.

More in general, throughout the panels as well as the following Q&A session, the leitmotifs of the discussion mainly revolved around the core elements of SLAPP cases – crucial for identification as there is no single, univocal definition in place –, stressing on the need for the theme to be brought into the spotlight to raise awareness, as well as for legal actors to strive for upholding ethical standards in their profession.

As clearly stated in each panel, it is in fact still feasible to grant some level of protection with no specific legislation enforced, particularly through the employment of procedural safeguards – namely within the national legal frameworks for abusive process –, and it is of utmost importance to strive for a systematic response through all means available, in a broader perspective that highlights the need to protect judicial independence as well as the autonomy of the legal profession for protection of rights to be ensured, even more in a context where the incidence of SLAPP cases is consistently on the rise.

Panelists also noted that, although the procedural rules de facto can empower judges to dismiss SLAPP cases or to at least move them on a more adequate procedural track, this is not always the case in practice as it is still challenging for lawyers as well as for judges, particularly for potential reputational costs – i.e. for judges in case of appeal – or for enforcement limitations – i.e. dismissed cases might be brought to another court.