Let's talk about forum shopping and #SLAPPs. For the time being and under the pandemic's influence they pose a constant threat for independent media and watchdogs across Europe. But what happens when a vixatious plaintiff decides to use private international law ? (1)
We already know that this type of activity undermine the right of access to information, free speech and expression. In addition, should another country becomes the ground for a lawsuit this could shake the trust between the common European legal system.
If Media serve as watchdogs and democracy's checkers how do we protect them? Did you know that the costs of one external abusive litigation to the Media's country of activity is enough to shut an outlet for good?
In the 10th article of the European Convention on Human Rights is clearly phrased that States have a positive obligation to “create a favourable environment for participation in public debate” which has been noted in many ECtHR decisions especially when photojournalists concerned
It's well known and appreciated that several recommendations and buzz from European organs are now public. Nevertheless, it appears that the US way of SLAPPs is becoming international. The evolvement of civil litigation in several parts of the world assists
the ones aiming to silence anyone opposing them. In the US this is addressed separately in every State but the magnitude of EU lies in its collective power. Let's take a look at what the law allows to happen:
In terms of international private law, the ones known as Brussels I and Rome II Regulations, assist greatly the claimant to establish a difficult to win defamation case coming in complete breach of Article 2 of the Treaty on the European Union (TEU).
This means that a claimant can attempt to establish a connection in a different country than the one of publication or distribution in order to scare the journalist in question. If this mentality is used in several countries then it's called a "mosaic approach"
This means that the journalist faces uncertainty, fear, deprived or diminished possibilities to a fair trial and slight chance of defending an article. If a "harmful event" as the claimant will say occurs in a different country how the journalist will explain that's it not?
Assuming an article for a GR businessman is published in GR but accessible to UK via internet and therefore he chooses to initiate proceedings in front of the UK Courts. Is the law of the place where the tort was committed or the law of the place of domicile or habitual
résidence applicable in this case or not? Rome II refers to obligations arising out of violations of privacy and rights relating to personality, including defamation. Given the lack of
a common, European wide accepted rule on the choice of law in defamation cases results in complete lack of legal certainty. This, means that journalists in order to avoid excessive costs of legal threats willingly submit themselves to the lowest bar of freedom of expression
which means that the ones going through and publishing what's needed to be said and written are considered activists because of how the European legislative bodies treat private international law.
The powerful claimant can choose from an open buffet of options but the defendant will always be shut out of the room and forced to the vending machine.
• • •
Missing some Tweet in this thread? You can try to
force a refresh
