Interviews with leading anti-SLAPP lawyers: Nicola Canestrini

Avv. Nicola Canestrini

The legal defence against SLAPPs is still a largely undeveloped field. Most lawyers have only a vague idea of SLAPPs, if any, as the topic is still barely present in their studies and existing regular training.

As part of the PATFox project, we have been organising training and networking meetings for lawyers to change this. We have talked to experts who have already gained experience with SLAPPs - this is the first of a series of interviews in which we present their views and perspectives.

Avv. Nicola Canestrini is a lawyer from Rovereto, Italy. As a criminal defence lawyer, he works in the field of Italian, European and international criminal law. These areas of law do not play a role in the currently discussed draft Anti-SLAPP Directive of the European Union. Nevertheless, Avv. Canestrini is very familiar with SLAPPs, which can sometimes have criminal relevance. For example, he successfully defended an employee of the Munich Environmental Institute in a cross-border case before the criminal court in Bolzano. The Environmental Institute had denounced the use of pesticides in the northern Italian region of South Tyrol in a poster campaign. The Italian public prosecutor's office followed the complaint of a South Tyrolean provincial council and over 1370 farmers and brought charges of defamation. The trial ended with an acquittal. We spoke to Avv. Canestrini about his general perspectives on the issue.

Can you characterise the SLAPP cases you have handled in recent years - is there a ‘classic’ SLAPP case, or is it difficult to generalise? What makes these cases stand out?

SLAPP cases are increasing. Because a certain sensitivity has developed, I’m also seeing a greater number of SLAPPs in my caseload. Journalists and activists, critical voices - people are always trying to silence them, even through the courts. The decisive factor in assessing whether a case is a SLAPP is where the power resources are. This involves economic, political and social resources. If someone has a lot of such resources and tries to silence critics, then it is a SLAPP.

I remember the case of a trade unionist a few years ago that did not go so well: there was a trial and even a conviction that was only overturned on appeal, although I had thought otherwise. I didn't realise at the time that this was a strategic move.

A trade unionist had written an article in the union newspaper that there was a lack of social justice in a hotel and the hotel federation because a POC who had worked in the hotel was not paid 700€ of her wages. As a result, the trade unionist was sued.

I think there is often a lack of understanding on the part of the judiciary of the social implications of such cases. The question that arises in such cases is: can this be a problem for democracy? The judiciary should be able to identify SLAPP cases at an early stage and deal with them in summary proceedings. Otherwise, the procedures take full effect and the strategy works. The chilling effect is always right there with an indictment anyway.

Do you think there are good practical ways to deal with this quickly?

For criminal cases, the Codice Rosso in Italy could be a model, in the context of crimes and violence against women. It could work similarly for SLAPPs. In civil cases, it is a bit more complicated. There, the public is missing, which is enormously important in such proceedings. In addition, there are higher costs, which are always measured by the value in dispute. At the same time, civil proceedings are also the more frequently chosen path for SLAPPs, I have the impression. Solutions would still have to be found for this.

What is the significance of SLAPPs for your professional practice? Are such cases different from other cases?

People affected by SLAPPs are often afraid that they will make things worse if they say something. I think that is exactly what is wrong. For example, there was an environmentalist where it was not so much public relations but another strategy that helped: A counter-litigation. We used judicial means to push back the other side and thereby gain more freedom. That's when you have to get creative.

Are SLAPP cases more stressful than others?

No, I like doing it, also because it is a way of defending the rule of law. It is fun. And it feels good that I can do something for it

How do you perceive the professional discourse on SLAPPs in the past 2-3 years? How is the topic addressed and discussed in the legal profession in your eyes, what (mis)understanding is developing in the judiciary?

There is not always understanding. It needs to be talked about more. Both in the legal profession and in the judiciary. It would be particularly important to address individual case arguments, which the opposing side often puts forward: In principle it's true, but with us it's really different. Then you would have to show specifically from case to case that it is not different after all. However, I think it is important not to accuse the respective lawyers or law firms of representing SLAPPs. I find this kind of assessment of lawyers in the rule of law problematic in principle. A lawyer should not be equated with the motives of the client - not even in the case of those initiating SLAPPs.

What is your outlook - what role will SLAPPs play in the next 2-3 years?

It seems that the problem is being recognised in Europe. At the same time, it has become clear that the currently much-discussed directive is not being welcomed with open arms. Whether it will succeed in making SLAPP methods impossible is unclear - I don't think European regulations alone can help. But it is a start. And public discourse itself has much more scope to stigmatise abusive intimidation. In the end, society can probably best help itself.