PATFox Germany co-hosts debate on SLAPPs with academic legal experts at Uni Heidelberg
Blueprint’s PHILIPP WISSING, the two PATFox Germany trainers Dr Nadine Dinig and Dr Jasper Prigge as well as Research Assistant Madeleine Petersen Weiner presented various aspects of the topic "SLAPP" in lecture theatre 04 of the New University of Heidelberg on 3 November 2013. The event was one of the rare opportunities in Germany to enter into a direct informed exchange and discuss various questions of institutional, legislative, legal-theoretical and practical discourses on the topic amongst experts. The audience consisted mostly of students and practitioners of political science and law.
Madeleine Petersen Weiner, research assistant at the institute for comparative law, conflict of laws and international business law at the Universität Heidelberg, opened the evening with introductory remarks on the topic. The abbreviation SLAPP comes from the USA: overpowering legal and natural persons who want to silence journalists or activists with legal "slaps on the wrist". The procedure is not always legally unfounded, but it always has an intimidating effect. It is a form of abuse of the law that seeks to suppress public criticism by means of legal action.
SLAPPs aim to intimidate critical voices and have a deterrent effect on civil society discourse and the critical public. Petersen Weiner cited a number of specific examples, such as the action taken by Roman Abramovich against the British journalist Catherine Belton.
Philipp Wissing from Blueprint for Free Speech e.V. then presented the wider political context of the current debate on SLAPPs. In 2017, the European Coalition Against SLAPPs in Europe (CASE), partly in response to the murder of Maltese investigative journalist Daphne Caruana Galizia, began to campaign rigorously for legal regulations against SLAPPs in Europe.
At the same time, the German No-SLAPP Alliance was also formed, largely against the backdrop of the successfully defended SLAPP against the Munich Environmental Institute and the Hohenzollern case series. Since April 2022, the European Commission has been addressing the growing number of SLAPPs across Europe and has drafted a proposal for a directive (52022 PC 0177 - EN - EUR-Lex). The legislative debate focuses on protection against intimidating abuse of rights while guaranteeing access to justice. In legal practice, on the other hand, the focus is already on concrete procedural strategy and tactical considerations, even before the directive has been adopted.
Since the end of 2022, the Pioneering Anti SLAPP Training for Freedom of Expression (PATFox) has therefore been networking and training lawyers in eleven European countries, funded by the European Commission's Directorate-General for Justice. Raising awareness among those (prospective) lawyers who are not primarily interested in SLAPPs as a business model is a central element in the fight against this form of abuse of power: the effective defence of journalists and activists against often unfounded accusations often fails because they are unable to find legal representation that is familiar with the SLAPP problem and knows appropriate defence strategies.
Dr Jasper Prigge is a lawyer specialising in copyright and media law. In Germany, he sees problems primarily in the pre-trial and out-of-court areas. Whereas in other countries there is a lot of strategic abuse of rights in court, in Germany the focus of strategic abuse of rights is primarily on out-of-court disputes. In Germany, the legal regulations make it very difficult to abuse the law in court. At the same time, the possibility of issuing a warning letter to a lawyer, which can be instrumentalised in many ways, is widely used, according to the media lawyer, who assumes a very high number of unreported SLAPPs that achieve their goal in this way without ever being brought to court.
Prigge reports on his experiences with large, multinational players who exert great pressure against critical reporting and local activism. The most common forms of legal abuse he encounters in practice are tight deadlines and disproportionately high damages claimed in civil proceedings, with the result that legal and procedural costs also increase, although it is often not clear what justifies the sometimes exorbitant damages. Overall, one question is increasingly taking centre stage for media lawyers: who can afford legal disputes in the first place?
Dr Nadine Dinig is a lawyer specialising in press and media law. She works closely with several publishing houses and journalists. And reports on a change that has taken place in recent years: Increasingly, journalists are being attacked or legally challenged as individuals, whereas previously it was customary to address the editorial offices or the publishing houses themselves. Dinig sees this as a SLAPP characteristic. He also feels that the debate on the topic, which was also triggered in Germany by the European Commission's draft directive, is sluggish and too slow. She considers the argument that there are no real SLAPPs, which is frequently put forward in Germany in particular, to be inaccurate - and irresponsible in view of the European dimension of the problem. The fact that there is clearly an increasing deterioration in freedom of expression in other EU countries alone means that the German debate cannot simply close itself off to the issue. The press law expert also formulated her position in the discussion with reference to equal access to justice, which must be guaranteed. For her, however, this principle of the rule of law is already out of balance insofar as many people simply cannot afford legal disputes, even if it is only an initial consultation with a lawyer. Against this backdrop, Dinig argues in favour of redressing this imbalance. And describes the EU-wide anti-SLAPP legislative initiative as a first step in this direction.
In the discussion with the participants at the event in Heidelberg, further questions arose in addition to the topics outlined by the two lawyers. To what extent should the political debate surrounding SLAPPs be seen as a legal discussion? And vice versa: To what extent can and should the legal discussion of strategic forms of abuse be conducted politically? To what extent must a state governed by the rule of law take account of the fact that becoming involved in legal proceedings can be problematic or even existentially threatening for many citizens? And who are the actual players in the public debate?
The event in Heidelberg provided extremely interesting insights into the academic and legal-practical debate on SLAPPs and made it clear that these and other questions need to be discussed if the critical public in Germany and Europe wants to maintain and even expand its constitutional framework. Those present in lecture theatre 04 took a step along this path together on 03.11.23.