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Eva Ivanova: In a few simple words- what do we mean when we talk about Strategic Lawsuits Against Public Participation (SLAPPs)?
Joanna Szymańska, ARTICLE 19: SLAPPs are strategic legal actions intended to silence someone. They take the form of lawsuits or other legal initiatives and are usually aimed against journalists or activists (environmentalists, for instance). Winning the lawsuit is generally the least important part. Rather, SLAPPs are meant to harass and have a chilling effect. Such attacks put the journalist or activist under immense pressure. Many of these proceedings drag on for years, are costly and stressful. Even if the defendant ends up winning the lawsuit, it is a great personal cost. More often than not, these suits result in health or financial problems.
What makes them different from other lawsuits?
- Of course, everyone has the right to fight for his or her good name in court, but the problem arises when one and the same person or corporation sends out such lawsuits en masse, and the target of the attacks is a single journalist or media outlet.
Whatever that person publishes, he or she is immediately hit with a lawsuit or a pre-litigation subpoena. Thus, we can say that the first characteristic feature of SLAPPs is the large scale, or even mass character of legal actions, although of course, these can be individual suits, their goal is always the same - to intimidate the defendant.
Their second feature is the considerable advantage on the side of the plaintiff: usually, people who file these lawsuits are well connected, know someone inside the government, are influential oligarchs or large corporations.
The Polish Journalism Society has found that a total of 187 different legal actions were directed against journalists since 2015. As many as 25 of them were based on Article 212 of the Polish Penal Code- they involved the crime of defamation, which can be punished with up to a year in prison. Is there anything specific about SLAPP suits in Poland?
- Yes, there is. As a matter of fact, such legal actions are usually initiated by people with ties to government authorities, members of the ruling party, leading politicians, but also high-ranking employees of state-owned enterprises. It is astonishing because according to international human rights standards, people who hold public office should be especially resistant to criticism. Those in power should not react so violently to efforts of greater transparency or critical voices evaluating their work.
How would you assess the situation of journalists in Poland?
- The results of a study we conducted at ARTICLE 19 match the findings of the Journalism Society. The scale of harassment affecting independent media in Poland is enormous.
Of course, to say that things were perfect before 2015 would be a stretch. Journalists - especially the local ones – were attacked by, for example, businessmen or influential local politicians. Article 212 of the Penal Code concerning defamation was also in force and I remember that almost every opposition party called for its abolition. Once the tables have turned, however, they simply forgot about it.
The world is moving away from criminal defamation laws. Defending one's good name should be based on civil regulations, which are much less repressive than criminal sanctions. Unfortunately, in Poland, nothing has changed in this regard for years. Since 2015, however, attacking independent media has become the government’s strategy of choice. There is no doubt that the ruling party wants to sue critical outlets into silence.
On top of that, we see attempts by the government to take over media, most recently exemplified by the case of Poland’s largest regional newspaper publisher Polska Press, which ended up being bought by Orlen. Where a takeover by state-owned companies is not an option, the outlets are attacked with SLAPPs. Those in power know perfectly well that litigation generates huge costs associated with legal services and even the largest media houses will sooner or later be unable to cope financially.
Of course, Poland is not the place where politicians sue journalists, but in other countries, many such attacks are initiated by the private sector: businessmen, corporations. In Poland, these are mostly ruling camp politicians or state-owned companies.
There is another factor that makes the situation of Polish journalists different from those in other countries: in Poland, the judiciary is increasingly less independent. Luckily, for now, most of the lawsuits targeting independent media leave journalists largely unscathed, but we can’t take this for granted in the future.
If the efforts to compromise the judiciary continue, the right to a fair trial will be in jeopardy. It is difficult to expect a fair and impartial trial if the judge is intimidated and harassed by the authorities.
When a journalist is sued by the government, what are his or her chances of winning the case?
- The chances of winning a lawsuit like this are rather slim. It is a situation where the balance of power is uneven by design. The media have limited financial and organizational capacities. They are not a bottomless piggy bank and legal services cost a lot of money. On the other hand, those who attack the media or activists have considerable resources at their disposal. In the case of the ruling camp, their financial possibilities are unlimited. And let's be honest: ultimately, it is not the party, the politician, or the state that pays for such lawsuits. It is the Polish taxpayer who foots the bill. Money does not come out of nowhere. Elaborate law firms specializing in SLAPPs are also created thanks to these funds. But money is not the only instrument government officials can use to silence critical outlets. They also have a politicized prosecutor's office, special services, and ever less independent courts to help them.
If attacks on independent media in Poland are usually initiated by government officials, we obviously cannot rely on them to introduce any anti-SLAPP legislation. What are some of the other options to curb this dangerous phenomenon?
- There is an ongoing campaign for an anti-SLAPP directive on the EU level. Our organization is involved in it. We believe that such a regulation would allow to introduce mechanisms that would dismiss SLAPPs at a very early stage of the judicial process. This would prevent such attacks from dragging on for years. In Poland, such cases take at least two or three years. And I know that there are some that last much longer. This generates huge costs. I think the chances for introducing such an EU regulation are high.
The problem is, the directive would require Member States to adapt their national legislation to the EU standard.
I honestly doubt that this will happen in Poland. If the Polish government ignores the rulings of the CJEU, which are binding decisions, what will stop it from ignoring such a directive? Not only does the current government fail to implement the CJEU's rulings, but the same applies to unfavorable rulings of the Polish courts as well.
After all, we have seen what happened recently with the takeover of Polska Press by Orlen. The court issued an interim measure and suspended the possibility of making decisions for the duration of the proceedings. Yet, despite this ruling, the takeover of regional media is in full swing. This is legal anarchy. It doesn’t matter whether it is international or EU law, or even the rulings of Polish courts- if the decision does not suit its interest, the ruling camp simply ignores it.
Of course, the EU directive is a step forward and may help many activists and journalists. But I am skeptical whether it will help the Polish media.
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