SLAPP Lawsuits: 10 Key Changes to Protect Activists and Journalists from Harassment

Ukrainian democracy rests on the truth and courage of those who speak about it. But recently, a new, insidious enemy of freedom of speech has appeared – SLAPP lawsuits. These are not just courts, this is real judicial terror, the malicious use of the system as a tool of pressure and intimidation. Their goal is to silence journalists, human rights defenders, activists and whistleblowers. The purpose of SLAPP is not to win the case, but to financially and procedurally exhaust the opponent.

The situation in Ukraine is criticalaccording to the reports of public organizations, in recent years there has been a significant increase in the number of strategic lawsuits against public participation (SLAPP lawsuits). This was confirmed by journalists and lawyers who recently discussed the problems of lawsuits against public participation (SLAPP lawsuits) during a panel discussion in Kyiv.When the court becomes an instrument of pressure: how to protect against SLAPP lawsuits?“.

Even in the EU countries, SLAPP lawsuits have acquired the characteristics of a pandemic: according to the CASE Coalition alone, in Europe for From 2010 to 2023, 1,049 cases were recorded judicial terror. The response to this threat was a powerful and consolidated advocacy battle of European and international organizations, coalitions, the academic community and European parliamentarians.

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The culmination of this struggle was the historic adoption Anti-SLAPP Directive (EU) 2024/1069 in April 2024. This legislative breakthrough provides substantial and unquestionable protections for civil society activists, journalists, human rights defenders, whistleblowers, and anyone who actively participates in public discussions of public issues, creating a strong legal shield against SLAPP lawsuits.

For us – the Ukrainian society and government, on the way to the EU, its implementation is not just a “homework”, but a matter of survival of free discussion, which is the basis of democratic institutions and freedom.

Therefore, it was adopted in April 2024 Directive (EU) 2024/1069 is our plan of action. We must immediately transform Ukrainian legislation into an Anti-SLAPP Shield.

For this you need 10 revolutionary stepswhich cover four key areas.

I. Legislative weapon: name the enemy We cannot fight an enemy we cannot name. SLAPP suits are always disguised.

1. Create an Anti-SLAPP Institute. A statutory definition of a SLAPP action is needed, and the protection should extend not by status, but by everyone who actively participates in public discussion and activities of public interest. We are not defending status, but the right to speak.

2. Protection against “forum shopping” (cross-border SLAPP). We should give a Ukrainian resident the right to sue for damages in a Ukrainian court for a SLAPP brought against him in a third-country court. This would close loopholes for those fleeing to jurisdictions with weaker protections for free speech.

II. Judicial Blitzkrieg: Stop the Pressure Instantly A true SLAPP should not go to trial on the merits. Speed ​​is our main ally.

3. Early Dismissal Institute. The CPC and CPC must obtain a new basis for closing the proceedings at the preparatory stage, as soon as the signs of a SLAPP are established. This is an instant stop to judicial terror.

4. Shift the burden of proof. If the defendant alleges SLAPP indicia, the burden of proving the absence of indicia must shift to the plaintiff. Let the plaintiff prove that his claim is fair, not the other way around.

5. Guarantee payment requirement. The court should have the right to require the plaintiff to deposit a sum of money into an escrow account to cover the defendant’s future legal expenses. Do you want to sue? pay

6. Give a shoulder of solidarity (Support from NGOs). In order to balance resources, specialized public organizations, trade unions or think tanks should be allowed to officially support the defendant in court.

III. Financial Retribution: Abuse Account An abuse of court must be catastrophically expensive for the plaintiff. We should not just refund the costs, but punish the intent to abuse.

7. Full reimbursement of actual expenses. The SLAPP initiator is responsible for full reimbursement of all legal costs, regardless of their amount. This should apply even if the claimant has withdrawn the claim (to avoid a penalty).

8. Fines. Introduce financial fines (sanctions) imposed by the court on plaintiffs for the very fact of SLAPP. This is a double whammy that will create a powerful deterrent effect.

9. Simplified damage compensation. The defendant who won the case should receive the right to a simplified procedure for compensation for the damage caused (psychological, reputational). This is a complete restoration of justice.

IV. System: education and a point of support A law that does not work is a dead law. We need institutions capable of implementing them.

10. Resource Center and Training of Judges. A Single Resource Center should be created or identified to provide specialized legal assistance and monitor SLAPP cases. In the short term, monitoring and coordination functions should be entrusted to the Office of the VRU Commissioner for Human Rights (Ombudsman). In parallel, introduce a mandatory training program for trainers to teach the judicial corps to identify the signs of SLAPP lawsuits.

Implementation of these 10 steps will become a reliable mechanism for protecting the right to speak the truth without fear that you will be destroyed in the courts.

Oksana Nesterenko

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