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Legal Intimidation [SLAPP Litigation]

[Strategic Lawsuits Against Public Participation]

SLAPP's are a flagrant abuse of process, which are sadly enabled by some unscrupulous legal practitioners. SLAPP's have been a problematic feature in the US, the UK, Europe and may other jurisdictions worldwide. They are a form of collateral litigation on innocent parties in an effort to apply pressure on a victim to silence them. The term "SLAPP" has been coined to cover it. Environmental defenders and investigative journalists have been the principal targets. The following is an extract from an anti-Slapp handbook (link below).

"SLAPPs [or Strategic Lawsuits Against Public Participation] are often threatened or filed with the intent of silencing participation and stifling public debate. SLAPPs function by harassing and intimidating individuals, in essence creating a “chill” in public participation. Defending a SLAPP involves a substantial drain of resources (namely money, energy and time) even if victory on the legal front is assured. The end result is that the suit may not be successful in court, but it has served to delay, silence and harass protestors. Whole communities can often become silenced out of fear of being dragged into a lawsuit."

SLAPP’s are used by litigants to threaten parties into silence, either through the retraction of published public interest reporting (oftentimes coupled with extensive punitive threats) and threaten the right of those challenged to bring matters of public interest to wider attention and subject victims to lawsuits intended to censor their work or intimidate them. SLAPP’s also have the effect of putting enormous pressure on relationships and partnerships. For example, by going after directors individually, they seek to divide and conquer. In Ireland, at a more basic level, the 'Solicitors Letter' is often used as a form of intimidation, but a SLAPP type suit is sometimes resorted to. A favourite form of SLAPP is that of 'trespass' and there are numerous examples of this in many jurisdictions.


Victims are put under enormous personal pressure merely for their part in public participation in planning and environmental law matters, which they have undertaken on a voluntary and altruistic basis in defending the public interest. A person targeted with SLAPP type law suits is also being put to enormous personal expense defending these trumped up charges, as they have to field a team of lawyers to defend themselves. It will be noted that the applicants will usually be seeking damages and costs in a further attempt to intimidate and leave a victim in fear of bankruptcy. Even the threat of trumped up legal proceedings is in itself an extreme form of harassment. SLAPP type law suits also have the effect of clogging up courts with vexations and spurious litigation.


Under normal circumstances, the situation in Ireland is that cost protection is afforded to people under s.50B of the planning acts for those defending environmental issues under the various EU Directives. This is not popular amongst certain developers, so by instituting proceedings against a person in their own right (as distinct from a Company or NGO), they are seeking to go after a target victim personally and inflict collateral damage. This of course defeats the whole concept of cost protection and is a direct attack on public participation as espoused under the Aarhus Convention together with various EU Directives (as transposed into into Irish law).

Officers of the Court

There are also major ethical issues on the part of legal practitioners who enable and facilitate such actions. Solicitors, barristers, attorneys are officers of the court and therefore a much higher standard is expected of them. Courts are busy institutions with lengthy waiting lists and adding unnecessarily to these waiting lists is an abuse of process. They also discredit their professions. In advocating SLAPP type litigation, they demonstrate poor judgement, a lack of integrity and a questionable moral compass. Essentially the line of client 'representation' is crossed and lawyers become the 'henchmen' or stooge for their 'clients'. This is an area which is in urgent need of scrutiny and oversight by regulatory bodies.

Pay to Punish

The concept of 'Pay to Punish' is well known in legal circles for many years. In reality, this kind of thing will not be limited to SLAPP type Litigation. Other forms of intimidation and pressure will often be encountered by victims, who may also find themselves defending investigations from various regulatory bodies on foot of complaints of a vexatious and spurious kind made against them. Erroneous or misleading complaints submitted by their 'clients’ often have the hallmarks of having been drafted by legal professionals who hide behind their client’s headed notepaper.

Various regulatory bodies will need to impose though sanctions for any lawyer (solicitor, barrister, attorney, etc) found to have enabled or who are currently enabling SLAPP type law suits. The criminal code urgently needs to be updated to put in place putative sanctions for those responsible. 

Moves are afoot at EU level to stamp out SLAPP litigation and we will endeavour to provide updates periodically. We are monitoring this situation closely and will cooperate as appropriate.

AARHUS and SLAPP

Art 3.8 of THE AARHUS CONVENTION and PROTECTION OF WHISTLEBLOWERS

Article 3(8) of the Aarhus Convention, which states: -

‘Each Party shall ensure that persons exercising their rights in conformity with the provisions of this Convention shall not be penalised, persecuted or harassed in any way for their involvement. This provision shall not affect the powers of national courts to award reasonable costs in judicial proceedings.’


The Aarhus Convention Implementation Guide (Second edition, 2014) is also helpful in elaborating on this principle in stating that: -

‘Paragraph 8 requires Parties to protect persons exercising their rights under the Convention. To some extent it reflects the so-called whistle-blower protection principle (based on the notion that someone “blows the whistle” to call the attention of the authorities to particular unlawful activities). As in many situations that involve openness and transparency and where economic interests are at stake, persons who take the risk of demanding that the rules be complied with and proper procedures followed may need to be protected from retribution.’

‘With respect to whistle-blowing more generally and not just in the workplace, Hungarian law provides that those who retaliate against persons who have made complaints in the public interest commit a misdemeanor under the Criminal Code and are subject to punishment by an imprisonment of up to one year, mandatory public service or a fine.’

People reporting planning and environmental illegality do so in the public interest and within the principals of the Aarhus Convention. It follows that they should not be subject to harassment, persecuted or penalised, and are entitled to the protection of the state.

COMMON LAW

Coercion and Harassment
In most jurisdictions it is a criminal offence to engage in Coercion and or Harassment. In Ireland this is covered by sections 9 and 10 of the Non Fatal Offences Against the Person Act. Having said that, the law will need to be updated to more specifically account for SLAPP type law suits.

FURTHER INFORMATION

Strategic lawsuit against public participation
https://en.wikipedia.org/wiki/Strategic_lawsuit_against_public_participation

DIRECTIVE (EU) 2019/1937 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 23 October 2019
on the protection of persons who report breaches of Union law
https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32019L1937

Joint JURI-LIBE Hearing on Strategic Lawsuits Against Public Participation
03-06-2021
https://www.europarl.europa.eu/committees/en/joint-juri-libe-hearing-on-strategic-law/product-details/20210601CHE08942

Business and Human Rights Resource Center
Legal Defence against SLAPPs
https://www.business-humanrights.org/en/big-issues/corporate-legal-accountability/materials-on-slapps/

Investors Caution Companies to Steer Clear of Lawsuits Against Human Rights Defenders
MONDAY, JUNE 14, 2021
https://investorsforhumanrights.org/news/investors-caution-companies-steer-clear-lawsuits-against-human-rights-defenders

Committee on Legal Affairs
Committee on Civil Liberties, Justice and Home Affairs
2021/2036(INI)
14.6.2021
DRAFT REPORT
on the strengthening democracy and media freedom and pluralism in the EU: the undue use of actions under civil and criminal law to silence journalists, NGOs and civil society
(2021/2036(INI))
https://www.europarl.europa.eu/doceo/document/CJ03-PR-693861_EN.pdf

The West Coast Environmental Law SLAPP Handbook
https://wcel.org/sites/default/files/publications/The%20West%20Coast%20Environmental%20Law%20SLAPP%20Handbook.pdf

West Coast Environmental Law
https://www.wcel.org/blog/how-should-we-slap-back-slapps

Donson, F. (2010) 'Libel Cases and Public Debate – Some Reflections on whether Europe Should be Concerned about SLAPPs', Review of European Community & International Environmental Law,
Donson, Fiona
https://cora.ucc.ie/bitstream/handle/10468/7385/8945_Donson_-_final.pdf

The Use of SLAPPs to Silence Journalists, NGOs and Civil Society
Policy Department for Citizens’ Rights and Constitutional Affairs Directorate-General for Internal Policies
PE 694.782- June 2021
https://www.europarl.europa.eu/RegData/etudes/STUD/2021/694782/IPOL_STU(2021)694782_EN.pdf

PROTECTING ACTIVISTS FROM ABUSIVE LITIGATION
SLAPPS IN THE GLOBAL SOUTH AND HOW TO RESPOND
2020
https://www.icnl.org/wp-content/uploads/SLAPPs-in-the-Global-South-vf.pdf

BOOKS

Legal Intimidation Hardcover
1 October 2000
by Fiona Donson (Author)
SLAPPS (strategic lawsuits against public participation), are well known in the United States of America and are on the increase in the United Kingdom. SLAPPS are court actions taken by powerful or wealthy individuals or organisations against ordinary people who seek to express their views and to take part in the decision-making processes which affect their lives. Their effect is meant to "chill" through legal intimidation - to stop the critics and end the debates. A steady growth of SLAPPS has occurred where government and business see their interests being threatened by those who dare to rock the boat. The court case becomes a weapon in a larger political war, tying people up in court rooms, sapping their energy and money, carrying the fear of severe legal sanction. In this way the law is used not to protect a valid legal claim but rather to frighten and silence those who are bold enough to criticize, question and speak out. Looking at various high-profile cases the author considers both the theory and practice of attacks upon free speech in a modern democracy. In the new era of human rights in the United Kingdom the author poses important questions about what the use of such legal actions tells us about the health of our democracy at the turn of the millennium.

Fiona Donson (Administrative Law and Justice, Children's Rights, Children of Prisoners, Penology).
Fiona is a graduate of Leicester University (LLB 1988), Queen's University, Canada (LLM 1989),
King's College London (PhD 1997).
She is currently the Director of the Centre for Criminal Justice and Human Rights in the Law School, UCC.
Fiona's publications include Law and Public Administration in Ireland (with Dr D. O'Donovan, Clarus Press, 2015) and Legal Intimidation: A SLAPP in the Face of Democracy (Free Association Books, 2000).
In addition, she has published articles on protest, human rights, administrative justice, policing and prisons.
Fiona has collaborated on projects funded by the Irish Research Council, the British Government, the Economic and Social Research Council (UK) and the Commission for the Support of Victims of Crime.
Her current research includes work on the rights of children of incarcerated parents,
public inquiries, Oireachtas inquiries, and more generally administrative justice.
Before joining UCC at the end of 2007 Fiona worked as a child rights advocate for a number of years
in Cambodia including developing child rights training for lawyers for UNICEF and running a major child rights project funded by the European Commission.
She has taught at a number of Law Schools in the UK including Leicester and Cardiff.

MEDIA

Call for sanctions against lawyers over 'SLAPP' tactics
By Jemma Slingo
15 June 2021
https://www.lawgazette.co.uk/news/call-for-sanctions-against-lawyers-over-slapp-tactics/5108838.article

London, libel and reputation management
The English courts attract those with deep pockets and much to lose
The editorial board
MAY 10 2021
https://www.ft.com/content/e37f3349-479f-42c6-85fe-11b5a29bdee0

EU WHISTLEBLOWERS POORLY PROTECTED
JACK HUNTER
MAY 3, 2021
https://meta.eeb.org/2021/05/03/eu-whistleblowers-poorly-protected/

A SLAPP in the face for free speech
By Jonathan Goldsmith
24 May 2021
https://www.lawgazette.co.uk/commentary-and-opinion/a-slapp-in-the-face-for-free-speech/5108571.article

Halt legal intimidation of reporters, EU demands
08 Jul 2021
https://www.lawsociety.ie/gazette/top-stories/Halt-legal-intimidation-of-reporters-say-EU

EU WHISTLEBLOWERS POORLY PROTECTED
JACK HUNTER
MAY 3, 2021
https://meta.eeb.org/2021/05/03/eu-whistleblowers-poorly-protected/

Have you been effected by anything on this page?

If so, we would like to hear from you.

We have significant experience on these matters and are currently preparing a dossier on SLAPP and related matters. We will be seeking to have those responsible brought to justice.

It is imperative that those who instigate and sponsor SLAPP suits together with related forms of bullying are subject to appropriate punishment.

It is also crucial that any lawyer who are enabling or facilitating SLAPP type suits or who have permitted their office to engage in other forms of related bullying, are brought to justice and held accountable. As legal practitioners they also have a duty to the court and should know better.

It is essential that regulatory authorities update their ethical standards to take account of this particularly ugly form of bullying which is a gross abuse of the legal system; the integrity of which suffers greatly when legal practitioners stoop to such levels.

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