“Daphne’s Law”: The European Commission introduces an anti-SLAPP initiative

 

Professor Justin Borg-Barthet, University of Aberdeen*

*Advisor to a coalition of press freedom NGOs on the introduction of SLAPPs, co-author of the CASE Model Law, lead author of a study commissioned by the European Parliament, and member of the Commission's Expert Group on SLAPPs and its legislative sub-group

 

Background

 

When Daphne Caruana Galizia was assassinated in Malta on 16th October 2017, 48 defamation cases were pending against her in Maltese and other courts. Daphne was at the peak of her journalistic powers when she was killed, producing a seemingly endless exposé of criminality involving government and private sector actors. Naturally, those she was exposing did not take kindly to the intrusion on the enjoyment of the fruits of their labour. Courts which offered few meaningful safeguards against vexatious litigation presented a nominally legitimate forum in which they would seek to exhaust and punish Daphne and to ensure that others did not engage in similar investigations. Most of these cases were inherited by her sons, whose grief was interrupted constantly by a need to appear in court in defence of their mother’s work.

 

The scale of abusive litigation which Daphne endured prompted several NGOs to look more closely at the phenomenon of SLAPPs. Strategic Lawsuits Against Public Participation, a term coined in American academic circles, are lawsuits intended not to serve the legitimate purpose of pursuing a claim against a respondent, but instead to use court procedure to suppress scrutiny of matters of public interest. The direct costs, psychological strain, and opportunity costs of defending oneself in court are intended to coerce retraction of legitimate public interest activity, and to have a chilling effect on others who might show an interest. While most SLAPPs are framed as defamation claims, there is also a growing body of abusive litigation which suppresses public participation using the pretext of other rights such as privacy and intellectual property.

 

In response to the growing SLAPP phenomenon, several US States, Canadian provinces and Australian states and territories have introduced anti-SLAPP statutes. Typically, these statutes provide for the early dismissal of cases, and include cost-shifting measures to compensate SLAPP victims and to dissuade claimants. No EU Member State has yet adopted similar laws. Prompted by Daphne’s experience, European NGOs and MEPs became increasingly aware of the alarming incidence of SLAPPs throughout Europe. They then set out to identify and advocate for legal solutions in the European Union.

 

Initially, the European Commission resisted calls for the introduction of anti-SLAPP legislation, citing a lack of specific legal basis. As the legal and statistical research bases for NGO advocacy evolved further, and following a change in the Commission’s political leadership, the Commission’s assessment changed. This culminated in the introduction of a package of anti-SLAPP measures on 27th April 2022, including a proposed anti-SLAPP Directive which Vice-President Jourova dubbed “Daphne’s Law”.

 

The legislative proposal is based, in part, on a Model Law which was commissioned by the Coalition Against SLAPPs in Europe (CASE), a grouping of NGOs established to further the research basis and advocacy for anti-SLAPP laws in Europe. That Model Law is itself inspired by anti-SLAPP statutes adopted in the United States, Canada and Australia, but accounts for divergent continental legal traditions, and benefits from extensive consultation with experts and practitioners in Europe and elsewhere.

 

Legal Basis and Scope

As noted above, the key barrier for NGOs and MEPs to persuade the Commission to initiate anti-SLAPP legislation was disagreement about whether the EU had competence to act in this area. Subsequently, however, the Commission recognised the internal market relevance of SLAPPs, as well as adopting a more strident approach to the rule of law and human rights implications of SLAPPs. Arguments concerning a legal basis included an approach based on numerous treaty articles (as in the Whistleblowers’ Directive), reliance on the internal market effects of SLAPPs (Article 114 TFEU) as in the Model Law, and the potential use of treaty provisions on cross-border judicial cooperation. Ultimately, in view of Member States’ expected resistance to intervention in domestic procedural law, the Commission’s draft proceeds on the basis that Article 81 TFEU confers competence in respect of judicial cooperation in civil matters.

 

The orthodox view of Article 81 TFEU presupposes an international element to matters falling within its scope. It was therefore incumbent on the drafters to constrain the scope of the proposed directive to cases having a cross-border dimension. The Commission’s proposal begins with a classic private international law formulation which refers to the domicile of the parties. A case lacks cross-border implications if the parties are both domiciled in the Member State of the court seised. This, however, is subject to a far-reaching caveat in Article 4(2):

 

Where both parties to the proceedings are domiciled in the same Member State as the court seised, the matter shall also be considered to have cross-border implications if:

a)      the act of public participation concerning a matter of public interest against which court proceedings are initiated is relevant to more than one Member State, or

b)      the claimant or associated entities have initiated concurrent or previous court proceedings against the same or associated defendants in another Member State.

 

The Commission’s proposal adopts an innovative formulation, the breadth of which is commensurate to the internal market and EU governance implications of SLAPPs. Given the EU’s interconnectedness, it is paramount that the law account for the fact that cross-border implications do not flow only from the circumstances of the parties but also from transnational public interest in the underlying dispute.

 

The broad scope could be extended further if and when Member States come to transpose the proposed directive in national law. It is hoped, and indeed recommended as good practice, that Member States will take the view that national transposition measures will not be restricted to matters falling within the scope of the Directive but would apply also to purely domestic cases. This would avoid the prospect of reverse discrimination against SLAPP victims in domestic disputes. It would also minimise opportunistic litigation concerning the precise meaning of ‘[relevance] to more than one Member State’ in Article 4(2)(a).

 

Defining SLAPPs

Other than in the title and preamble, the proposed directive does not deploy the term ‘SLAPPs’. Discussions preceding the drafting process noted a number of difficulties associated with the term, not least (i) its unfamiliarity to a European legal audience, and (ii) the potential confusion resulting from the word ‘strategic’, which could be understood to require evidence of said strategy. In keeping with the Model Law, the Commission’s draft Directive deploys familiar language and focuses on the abusive nature of the proceedings. Rather than referring to SLAPPs, therefore, the text of the draft directive uses the term ‘abusive court proceedings against public participation’.

 

In identifying matters falling within the scope of the draft directive, it is first necessary to establish that a matter concerns ‘public participation’ on a matter of ‘public interest’. The Commission’s draft accounts for the fact that SLAPPs do not only target journalistic activity, but also seek to constrain legitimate action of civil society, NGOs, academics, and others. Public participation and public interest are therefore defined broadly as follows in Article 3:

 

‘public participation’ means any statement or activity by a natural or legal person expressed or carried out in the exercise of the right to freedom of expression and information on a matter of public interest, and preparatory, supporting or assisting action directly linked thereto. This includes complaints, petitions, administrative or judicial claims and participation in public hearings;

‘matter of public interest’ means any matter which affects the public to such an extent that the public may legitimately take an interest in it, in areas such as:

a)      public health, safety, the environment, climate or enjoyment of fundamental rights;

b)      activities of a person or entity in the public eye or of public interest;

c)       matters under public consideration or review by a legislative, executive, or judicial body, or any other public official proceedings;

d)      allegations of corruption, fraud or criminality;

e)      activities aimed to fight disinformation;

 

If a case concerns public participation in matters of public interest, it is then necessary to establish that the proceedings are abusive in accordance with the definition in Article 3:

‘abusive court proceedings against public participation’ mean court proceedings brought in relation to public participation that are fully or partially unfounded and have as their main purpose to prevent, restrict or penalize public participation. Indications of such a purpose can be:

a)      the disproportionate, excessive or unreasonable nature of the claim or part thereof;

b)      the existence of multiple proceedings initiated by the claimant or associated parties in relation to similar matters;

c)       intimidation, harassment or threats on the part of the claimant or his or her representatives.

 

There are therefore two key elements to the notion of abuse: (i) claims may be abusive because they are fully or partly unfounded, or (ii) they may be abusive because of vexatious tactics deployed by claimants. The implications of a finding of abusiveness will vary depending on the type of abuse identified in the proceedings, with more robust remedies available where the claim is manifestly unfounded in whole or in part.

 

Main legal mechanisms to combat SLAPPs

Once a court has established that proceedings constitute SLAPPs falling within the directive’s scope, three key remedies will be available to the respondent in the main proceedings: (i) the provision of security for costs and damages while proceedings are ongoing, (ii) the early dismissal of proceedings, and (iii) payment of costs and damages.

 

Speedy dismissal of claims is considered the cornerstone of anti-SLAPP legislation. Accelerated dismissal deprives the SLAPP claimant of the ability to extend the financial and psychological costs of proceedings to the detriment of the respondent. Early dismissal of cases must, of course, be granted only with great caution given it is arguable that this restricts the claimant’s fundamental right to access to courts. The solution provided in the draft directive is to restrict the availability of this remedy to claims which are manifestly unfounded in whole or in part. It is for the claimant in the main proceedings to show that their claim is not manifestly unfounded (Art 12).

 

Early dismissal is not available where the claim is not found to be manifestly unfounded, even if the its main purpose is ‘to prevent, restrict or penalize public participation’ (as evidenced by ‘(i) the disproportionate, excessive or unreasonable nature of the claim…the existence of multiple proceedings [or] intimidation, harassment or threats on the part of the claimant’). This differs from the Model Law which envisages early dismissal in cases which are not manifestly unfounded but which bear the hallmarks of abuse. The Model Law’s authors reasoned that a court should be empowered to dismiss a claim which is designed to abuse rather than vindicate rights. This would not, in our view, constitute a denial of the right to legitimate access to courts but would dissuade behaviour which is characterised as abusive in the Commission’s own draft instrument. While the Commission’s reasoning and caution are understandable, the high bar set by the requirement of manifest unfoundedness allows for significant continued abuse of process.

 

This shortcoming is mitigated somewhat by the other remedies, namely the provision of security pendente lite (Article 8) and liability for costs, penalties, and compensatory damages (Articles 14-16), which are available regardless of whether the SLAPP is manifestly unfounded or merely characterised by abuse of rights. These financial remedies are especially useful insofar as they give the respondent some comfort that they will be compensated for the loss endured through litigation. They are also expected to have a dissuasive effect on SLAPP claimants who would be especially loathe to the notion of rewarding the respondent whose legitimate exercise of freedom of expression they had sought to dissuade or punish. Nevertheless, it bears repeating that in all cases these remedies, designed to compensate harm, should supplement the principal remedy of early dismissal which is intended to prevent harm.

 

In addition to these main devices to dissuade the initiation of abusive proceedings against public participation, the draft directive includes a number of further procedural safeguards. These include restrictions on the ability to alter claims with a view to avoiding the award of costs (see Recital 24 and Article 6), as well as the right to third party intervention (Article 7) which will enable NGOs to submit amicus briefs in proceedings concerning public participation. While this may appear to be a minor innovation at first blush, it could have substantial positive implications insofar as it would equip more vulnerable respondents (and less expert courts) with valuable expertise and oversight.

 

London Calling: Private International Law Innovation

While the provisions discussed above would limit the attractiveness of SLAPPs in EU courts, there would remain a significant gap if EU law did not provide protection against the institution of SLAPPs in third countries. London, with its high litigation costs and somewhat claimant friendly defamation laws, is an especially attractive forum for claimants who wish to suppress public scrutiny. Equally, other States could be attractive to claimants who wish to circumvent EU anti-SLAPP law, whether simply as a function of the burden of transnational litigation, or because of the specific content of their substantive and/or procedural laws. The draft directive therefore proposes to introduce harmonised rules on the treatment of SLAPP litigation in third countries.

 

Article 17 provides that the recognition and enforcement of judgments from the courts of third countries should be refused on grounds of public policy if the proceedings bear the hallmarks of SLAPPs. While Member States were already empowered to refuse recognition and enforcement in such cases, the inclusion of this article ensures that protection against enforcement of judgments derived from vexatious proceedings is available in all Member States.

 

Article 18 provides a further innovation by establishing a new harmonised jurisdictional rule and substantive rights to damages in respect of SLAPPs in third countries. The provision confers jurisdiction on the courts of the Member State in which a SLAPP victim is domiciled regardless of the domicile of the claimant in the SLAPP proceedings. This would provide an especially robust defence against the misuse of third country courts and reduce the attractiveness of London and the United States as venues from which to spook journalists into silence.

 

While the limitation of forum shopping in respect of third countries is, of course, welcome, there does remain a significant flaw insofar as EU law and the Lugano Convention facilitate forum shopping within the European judicial area. The cumulative effect of EU private international law of defamation is to provide mischievous litigants with ample opportunity to deploy transnational litigation as a weapon to suppress freedom of expression. NGOs have therefore requested amendment of two EU private international law instruments:

 

In the first instance, and as a matter of urgency, the Brussels I Regulation (recast) requires amendment with a view to grounding jurisdiction in the domicile of the defendant in matters relating to defamation. This would remove the facility for pursuers to abuse their ability to choose a court or courts which have little connection to the dispute;

The omission of defamation from the scope of the Rome II Regulation requires journalists to apply the lowest standard of press freedom available in the laws which might be applied to a potential dispute. We recommend the inclusion of a new rule which would require the application of the law of the place to which a publication is directed;

 

These changes have not yet been forthcoming. It is hoped that ongoing reviews of these instruments will yield further good news for public participation in the EU.

 

Concluding remarks

Daphne’s Law will now have to be approved by the Council of Ministers and the European Parliament. The legislative process may see a Parliament seeking more robust measures pitted against Member States who may be inclined to protect their procedural autonomy. The Commission has considered these competing demands in its draft and sought to propose legislation which strikes a balance between divergent institutional stances. Nevertheless, it must be expected that the draft will be refined as it makes its way through the approval process. As noted above, the draft would be improved if those refinements were to include the extension of early dismissal to cases beyond the narrow confines of manifest unfoundedness. Equally, the draft directive should be viewed as a first welcome step in the pushback against SLAPPs in Europe and that reviews of private international law instruments will follow soon after.

 

Photo credit: ContinentalEurope, on Wikicommons

European Democracy Action Plan – an Overview

 

 

Professor Lorna Woods, University of Essex

The European Democracy Action Plan (EDAP) (COM(2020)790 final) is part of a suite of measures all potentially affecting the online environment; indeed, it is one of the major initiatives announced in the agenda set by Commission President von der Leyen.  The Digital Services Act (DSA) and Digital Markets Act (DMA) are also eagerly expected (probably just before Christmas so everyone is too distracted really to comment).  As well as reflecting the shift in some of the underlying assumptions about the approach to the Internet, these measures also challenge our understanding of what we expect the EU to do and where the limits to its (legislative) competence lies.

 The backdrop to EDAP is the importance of democracy as well as human rights and the rule of law, hot topics at the moments and ones on which there is now apparently no easy consensus to be had.  The Communication starts by recognising the challenges that the institutions of democracy have been under threat and that matters have been made worse by COVID-19.  It also notes the importance of trying to ensure that there is a coherent approach between internal activities and external actions in this context – although the Union’s competence varies in this regard. The UK will of course form part of the external environment.  EDAP provides a ‘reinforced EU policy framework’ which includes specific measures aimed at 

-          Promoting free and fair elections and strong democratic participation;

-          supporting free and independent media; and

-          countering disinformation.

 At the same time, the action plan relies heavily on ‘empowering citizens and civil society to counter the threats’. 

Democratic Participation

 There are four elements to this theme: 

-          transparency of political advertising and communication;

-          financing of European political parties;

-          cooperation to ensure free and fair elections; and

-          democratic engagement beyond elections.

 Political Advertising

There is, apparently, wide recognition of the risk of interference in elections, and the use of social media in this regard is central.  While the Communication recognises that some of the issues in this area may well fall within the GDPR already, it states that is will present a legislative proposal on the transparency of sponsored political content to sit alongside the rules relating to online advertising in the proposed DSA (with the aim that these rules be in place by the next EP elections).  While little can be divined from one sentence, it is clear that there will be much heartache about which material falls within the rules.  Note, for example, that the target of the measure will be ‘sponsored’ (is this payment for the content to be carried or might it cover financial relationships more broadly) or ‘political content’ (so presumably not limited to content that is understood as being an advert). Further, subjects of the regulation are proposed not to be limited to ‘sponsors’ but to those in production/distribution channels (including agencies and political consultancies) as well – of course – as the platforms themselves (though we do not yet know what precisely is a platform – does it include a search engine?).  Interestingly, these rules do not seem intended to run just through election periods because the Communication also states that the Commission will investigate whether further/better rules would be needed during these periods.  Key elements of the proposal seem to relate to putting in place transparency requirements to allow accountability, auditability, as well as tools related to information flow rather than content-based rules (for example, labelling, record-keeping, transparency of targeting and amplification criteria); the shift away from rules targeting specific types of content can be seen elsewhere too. The Communication also flags the possibility of co-regulatory codes (and supervisory authority).  

Funding of European Political Parties

Funding of European political parties is governed by EU; the Commission envisages a review on the legislation (Regulation 1141/2014 on the statute and funding of European political parties) in this area. 

Strengthened Cooperation to ensure free and fair elections

Elections are mainly a matter of Member State competence albeit with influence in some aspects from EU law (notable data protection).  The Commission’s role in this context would be to facilitate cooperation between Member States based on the existing European cooperation network on elections.  Possible activities include an online forum, joint training, pooled resources and expertise, as well as online monitoring capabilities.  The Communication also suggests that these processes and their administration could fall within critical infrastructure regimes (e.g. Regulation (EU) 2019/452 establishing a framework for the screening of foreign direct investments into the Union); again, this seems part of a more expansive view of critical infrastructure. 

Beyond technical security and the possibilities of e-voting, the Communication raises the issue of balanced media coverage during elections (a matter at the least outwith legislative competence), identifying the European Regulators Group for Audiovisual Media Services (ERGA) set up under the Audiovisual Media Services Directive (AVMSD) as relevant. In passing it may be noted that this is the body with the independent national supervisory authorities on it (see Article 30b AVMSD) rather than the Contact Committee.  The Contact Committee may include representatives from the Member States’ governments. There is the potential for a competence question for ERGA  here. Its tasks are set out in Art 30b(3) AVMSD, but while it is to provide technical expertise on ‘matters related to audiovisual media services within its competence’, it is not clear what ERGA’s competence actually is. Certainly, matters within the AVMSD would fall within remit, but balanced media coverage is not a matter covered by the directive. 

The Communication also draws links with external relations in the context of elections, referring to the Council of Europe, UNESCO and the OSCE with the aim of sharing best practice. 

Promoting democratic engagement 

The EU has long struggled with citizen engagement – what used to be described as being part of the democratic deficit.  Much of what the Communication proposes here has links to matters covered by the 2020 Citizenship Report and its Rule of Law Report as well as the 2020-2025 Gender Equality Strategy (COM(2020)152); the EU Youth Strategy (2019-2027); the EU anti-racism action plan 2020-2025 (COM(2020)565).  As such, this Communication seems to function as a basket into which a range of pre-existing strategies can be put, a theme which is seen elsewhere in the Communication too. 

More concretely, the Communication puts forward proposals with regard to tackling online hate speech, dealt with on a voluntary basis through the Code of Conduct on Tackling Illegal Hate Speech. The list of EU crimes (Article 83(1) TFEU) will be extended to include hate crime and hate speech (though it is not clear from this which characteristics might be protected – would the intention be to cross refer to those listed in Article 21 EU Charter on Fundamental Rights, as in the AVMSD?).  Of course, this to some extent may become superfluous in the light of the DSA which, one might hope, would at least have hate speech within scope. 

Media Freedom 

The Communication identifies two main aspects to media freedom and pluralism: 

-          the online and physical safety of journalists, as well as protection from abusive litigation (anti-SLAPP);

-          the impact of the role of platforms as digital gatekeepers (and absorbers of advertising revenue). 

Safety of Journalists 

Impunity for threats against journalists has long been a problem and has been the subject of much debate for at least a decade.  The Commission proposes to add to the dialogue through the European News Media Forum that it will establish, together with proposing a recommendation on the safety of journalists (to add to the various recommendations and declarations put forward by a phalanx of international human rights bodies). Of course, the EU is limited in terms of what it can do in terms of law internally in this field; externally, it proposes monitoring and public diplomacy.  The provision of funding to support journalists (e.g. for legal aid and shelters for those in need) seems more likely to have concrete effects. 

Anti-SLAPP and Professional Standards 

Strategic lawsuits against public participation (SLAPPS) are noted as being a technique to harass journalists and others working in the public interest; this forms part of an increasingly hostile environment.  SLAPPS take place within the Member States’ own national legal systems, though the Communication notes that they may have cross border effects, with risk of forum shoppping and  increased complexity for a defendant (the impact of such actions and the countervailing interest in providing individuals with protection for their legitimate personality rights has not been fully considered in the context of the free movement of services and whether any such rules constitute a restriction). Some of this relates to areas where there is existing EU law: the Communication notes the evaluation of Rome II and Brussels Ia Regulations. A new initiative is planned in preparation for which the Commission is carrying out a mapping study. The Commission will set up an expert group on SLAPPs. 

The Commission aims to promote stronger cooperation between media self-regulation bodies (presumably this is aimed at the press or the journalists themselves as television broadcasting and the like is regulated by virtue of the AVMSD). 

Additional Support 

The Communication notes the 2018 revision of the AVMSD requires transparency of media ownership. Note that while Art 5(1) revised AVMSD requires the provision of a service providers name, contact details and the Member State under the jurisdiction of which it operates (similar to requirements in the e-Commerce Directive as regards information service providers), the requirement on Member States to oblige media service providers to give further information regarding their beneficial owners and ownership structure is optional.  This is a potentially significant gap and may disappoint some groups who have campaigned for more transparency in this regard. 

In terms of ownership, there is a plan to analyse national rules on media diversity and media concentration, against a backdrop of the role of online platforms. There is no intention to legislate at Union level (the attempt to do so from the 1990’s sinking on the rock of EU competence); instead, the aim is to coordinate within a range of existing tools: competition law, freedom of establishment and the revised AVMSD (which contains more provisions expressly permitting Member States to take action on certain issues, for example the prominence of public service content).  The Communication does not consider whether media services (or some of them) should be considered from the perspective of national security and the protection of critical national infrastructure.  The Communication notes the need for (financial) support on the part of the Member States, but also underlines the fact that this would have to comply with the State Aid rules.  There have been many decisions on such support – to the press as well as to public service broadcasters – but the Council has invited the Commission to consider these rules in relation to the press sector (whatever is comprised under that heading).  Nonetheless, this still leaves a potential weakness in that the deployment of support seems to be a matter of individual Member State choice. 

The Communication also highlights the importance in some Member States of state advertising (and this importance has been noted elsewhere, its withdrawal being seen as an interference with media speech by some international human rights bodies). EDAP suggests that transparent rules and fair criteria for the allocation of such advertising could mitigate the risks in this area; it also draws attention to the public procurement strategy.  To a certain extent this maps on to issues dealt with by the Media and Audiovisual Action Plan (launched the same day as EDAP), key themes of which are about supporting the media and by tackling the segmentation of the European market. Comprising three main strands of activity (Recover, Transform and Empower), the Media and Audiovisual Action Plan contains no immediate or specific legislative proposals, a section deals with looking at the implementation of the revised AVMSD. 

Countering Disinformation 

Often documents talking about disinformation start by distinguishing between disinformation and misinformation and stating that we should not really use the term ‘fake news’.  The Communication spares us the latter point and, drawing on work from the Carnegie Endowment for International Peace, adds to the classification so it now comprises four elements: 

-          misinformation

-          disinformation

-          information influence operation

-          foreign interference in the information space.

These may each require different treatment (though the boundaries between the categories may not be easy in practice to draw or maintain) and the possibility of introducing oversight may give rise to concerns in some quarters in relation to freedom of expression. Whether such a concern is justified is another question.  The proposals seem to draw on existing initiatives in this field but emphasise certain factors in the online environment which give rise to or exacerbate problems: manipulative amplification of harmful content; the economic incentives for spreading disinformation; and the lack of costs for foreign actors seeking to engage in influence operations. These activities are stated not to “interfere with people’s right to express opinions or to restrict access to legal content” [p 19]. This may link to the distinction between have the ability to air certain views and the way that content is promoted/how easy it is to find. The Communication also notes the importance of fact-checking.  

The actions in this section fall into three categories:

-          capacity building;

-          obligations and accountability in re platforms; and

-          empowering citizens.

 Capacity Building

 This section notes the ease with which information may be weaponised by foreign actors, but also domestic actors. The first aspect of any response is to better understand the threat landscape and the Communication calls for closer cooperation internally as well as with relevant stakeholders in civil society, academia and private industry, and with international partners. Here the EDAP refers back to the EU Security Union Strategy (COM(2020)605 final) from July 2020. Within this, the Commission plans to develop a common framework and methodology for collecting systematic evidence on foreign interference. The existing Rapid Alert System, one of the four pillars of the  Action Plan against Disinformation from 2018 and run by the EEAS, will continue to function but the Communication envisages the possibility of extending the bodies it cooperates with (already including NATO and G7) to the EU Agency for Cybersecurity (ENISA), the European Digital Media Observatory (EDMO – established 2020) and even Europol.

One new proposal is that of seeking to impose costs on perpetrators.  In the response to its consultation on the Communication, the Commission noted that civil society organisations stressed the need to make the threat of targeted sanctions more credible and frequent, to raise the cost of foreign influence operations and thereby deter interference. The mechanisms to do this need further development and also need to synergise with the ‘cyber diplomacy toolbox’ from 2017.  The Communication also recognises the need to tackle threats through tackling them in third countries, suggesting that democratic governments should be equipped with the means to respond to such threats, especially in the European Neighbourhood and Enlargement region. 

Platform Accountability

Increasingly policy-makers are recognising that the platforms are not neutral as to the content they encourage and promote; the recent assessment of the Code of Practice on Disinformation re-iterated this point (see also views of ERGA).  The Commission now proposes a co-regulatory oversight mechanism, forming part of the DSA; this linkage significantly reinforces the importance ascribed to this issue.  The DSA is described as requiring a risk managed approach to their systems (and if this is so, it seems to be following a similar approach to that proposed by Carnegie UK Trust [disclaimer: I co-authored the report] which seems to have influenced the UK Government’s Online Harms White Paper which talks about ‘safety by design’).  In the meantime, the Commission will issue guidance on tackling misinformation with the aim of strengthening the code; the Commission also envisages more robust and on-going monitoring of the code. The Commission also emphasised the importance of the EDPB guidance on the application of the GDPR in this context. 

Empowering Citizens

This is essentially about strengthening media literacy through a number of mechanisms, including civil society and higher education establishments and it ties with a number of media initiatives.  Intuitively, this sounds right but may be more difficult to achieve in practice and media literacy initiatives’ success may depend to some extent on changing to the business systems that at the moment seem to promote misinformation and disinformation and trigger ‘frictionless communication’. 

Conclusion

The plan is broad and it will be interesting to see the speed at which these new initiatives are rolled out and more detail added to them (e.g. imposing costs on perpetrators). Much of the work is not of a legislative nature but rather about ensuring co-operation and making effective initiatives that already exist.  While desirable in its own right, this fact also reminds us that we are in terrain where the EU’s competence is limited, certainly as far as legislative capacity goes.  It is also noteworthy that much of EDAP refers to other strategies and action plans. A cynic might say then what, in concrete terms is new; but another perspective notes that the issue of disinformation and misinformation is complex and touches on many areas. In this light, the EDAP is a mechanism pulling these disparate strands and actors together. It remains to be seen this impact that increased cooperation will have on the problems in this area.

 

Photo credit: via Wikimedia commons, by Skeptical Science

Zakharov v Russia: Mass Surveillance and the European Court of Human Rights

Lorna Woods, Professor of Internet Law, University of Essex*

Introduction

The European Court of Human Rights has heard numerous challenges to surveillance regimes, both individual and mass surveillance, with mixed results over the years.   Following the Snowden revelations, the question would be whether the ECtHR would take a hard line particularly as regards mass surveillance, given its suggestion in Kennedy that indiscriminate acquisition of vast amounts of data should not be permissible. Other human rights bodies have condemned this sort of practice, as can be seen by the UN Resolution 68/167 the Right to Privacy in the Digital Age. Even within the EU there has been concern as can be seen in cases such as Digital Rights Ireland (discussed here) and more recently in Schrems (discussed here). The Human Rights Court has now begun to answer this question, in the Grand Chamber judgment in Zakharov v. Russia (47143/06), handed down on December 4 2015.

Facts

Zakharov, a publisher and a chairman of an NGO campaigning for media freedom and journalists’ rights, sought to challenge the Russian system for permitting surveillance in the interests of crime prevention and national security. Z claimed that the privacy of his communications across mobile networks was infringed as the Russian State, by virtue of Order No. 70, had required the network operators to install equipment which permitted the Federal Security Service to intercept all telephone communications without prior judicial authorisation.

This facilitated blanket interception of mobile communications. Attempts to challenge this and to ensure that access to communications was restricted to authorised personnel were unsuccessful at national level. The matter was brought before the European Court of Human Rights. He argued that the laws relating to monitoring infringe his right to private life under Article 8; that parts of these laws are not accessible; and that there are no effective remedies (thus also infringing Art. 13 ECHR).

Judgment

The first question was whether the case was admissible. The Court will usually not rule on questions in abstracto, but rather on the application of rules to a particular situation. This makes challenges to the existence of a system, rather than its use, problematic. The Court has long recognised that secret surveillance can give rise to particular features that may justify a different approach. Problematically, there were two lines of case law, one of which required the applicant to show a ‘reasonable likelihood’ that the security services had intercepted the applicant’s communications (Esbester) and which favoured the Government’s position, and the other which suggested the menace provided by a secret surveillance system was sufficient (Klass) and which favoured the applicant.

The Court took the opportunity to try to resolve these potentially conflicting decisions, developing its reasoning in Kennedy. It accepted the principle that legislation can be challenged subject to two conditions: the applicant potentially falls within the scope of the system; and the level of remedies available. This gives the Court a form of decision matrix in which a range of factual circumstances can be assessed. Where there are no effective remedies, the menace argument set out in its ruling in Klass would be accepted.

Crucially, even where there are remedies, an applicant can still challenge the legislation if ‘due to his personal situation, he is potentially at risk of being subjected to such measures’ [para 171]. This requirement of ‘potentially at risk’ seems lower than the ‘reasonable likelihood’ test in the earlier case of Esbester. The conditions were satisfied in this case as it has been recognised that mobile communications fall within ‘private life’ and ‘correspondence’ (see Liberty, para 56, cited here para 173).

This brought the Court to consider whether the intrusion could be justified. Re-iterating the well-established principles that, to be justified, any interference must be in accordance with the law, pursue a legitimate aim listed in Article 8(2) and be necessary in a democratic society, the Court considered each in turn.

The requirement of lawfulness has a double aspect, formal and qualitative. The challenged measure must be based in domestic law, but it must also be accessible to the person concerned and be foreseeable as to its effects (see e.g Rotaru). While these principles are generally applicable to all cases under Article 8 (and applied analogously in other rights, such as Articles 9, 10 and 11 ECHR), the Court noted the specificity of the situation. It stated that:

‘…. domestic law must be sufficiently clear to give citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to any such measures’ [para 229].

In this, the Court referred to a long body of jurisprudence relating to surveillance, which recognises the specific nature of the threats that surveillance is used to address. In the earlier case of Kennedy for example, the Court noted that ‘threats to national security may vary in character and may be unanticipated or difficult to define in advance’ [para 159].

While the precision required of national law might be lower than the normal standard, the risk of abuse and arbitrariness are clear, so the exercise of any discretion must be laid down by law both as to its scope and the manner of its exercise. It stated that ‘it would be contrary to the rule of law … for a discretion granted to the executive in the sphere of national security to be expressed in terms of unfettered power’ [para 247]. Here, the Court noted that prior judicial authorisation was an important safeguard [para 249]. The Court gave examples of minimum safeguards:

§  The nature of offences which may give rise to an interception order

§  A definition of the categories of people liable to have their telephones tapped

§  A limit on the duration of telephone tapping

§  Protections and procedures for use, storage and examination of resulting data

§  Safeguards relating to the communication of data to third parties

§  Circumstances in which data/recordings must be erased/destroyed (para 231)

§  the equipment installed by the secret services keeps no logs or records of intercepted communication, which coupled with the direct access rendered any supervisory arrangements incapable of detecting unlawful interceptions

§  the emergency procedure provided for in Russian law, which enables interception without judicial authorization, does not provide sufficient safeguards against abuse.

The Court then considered the principles for assessing whether the intrusion was ‘necessary in a democratic society’, highlighting the tension between the needs to protect society and the consequences of that society of the measures taken to protect it. The Court emphasised that it must be satisfied that there are adequate and effective guarantees against abuse.

In this oversight mechanisms are central, especially where individuals will not – given the secret and therefore unknowable nature of surveillance – be in a position to protect their own rights. The court’s preference is to entrust supervisory control to a judge. For an individual to be able to challenge surveillance retrospectively, affected individuals need either to be informed about surveillance or for individuals to be able to bring challenges on the basis of a suspicion that surveillance has taken place.

Russian legislation lacks clarity concerning the categories of people liable to have their phones tapped, specifically through the blurring of witnesses with suspects and the fact that the security services have a very wide discretion. The provisions regarding discontinuation of surveillance are omitted in the case of the security services. The provisions regarding the storage and destruction of data allow for the retention of data which is clearly irrelevant; and as regards those charged with a criminal offence is unclear as to what happens to the material after the trial.

Notably, the domestic courts do not verify whether there is a reasonable suspicion against the person in respect of whose communications the security services have requested interception be permitted. Further, there is little assessment of whether the interception is necessary or justified: in practice it seems that the courts accept a mere reference to national security issues as being sufficient.

The details of the authorisation are also not specified, so authorisations have been granted without specifying – for example – the numbers to be interception. The Russian system, which at a technical level allows direct access, without the police and security services having to show an authorisation is particularly prone to abuse. The Court determined that the supervisory bodies were not sufficiently independent. Any effectiveness of the remedies available to challenge interception of communications is undermined by the fact that they are available only to persons who are able to submit proof of interception, knowledge and evidence of which is hard if not impossible to come by.

Comments

The Court could be seen as emphasising in its judgment by repeated reference to its earlier extensive case law on surveillance that there is nothing new here. Conversely, it could be argued that Zakharov is a Grand Chamber judgment which operates to reaffirm and highlight points made in previous judgments about the dangers of surveillance and the risk of abuse. The timing is also significant, particularly from a UK perspective. Zakharov was handed down as the draft Investigatory Powers Bill was published. Cases against the UK are pending at Strasbourg, while it follows the ECJ’s ruling in Schrems, with Davis (along with the Swedish Tele2 reference), querying whether the Digital Rights ruling applies to national data retention schemes, now pending before the ECJ (on that issue, see discussion here). The ECtHR noted the Digital Rights Ireland case in its summary of applicable law.

In setting out its framework for decisions, the Court’s requirement of ‘potentially at risk’ even when remedies are available seems lower than the ‘reasonable likelihood’ test in Esbester. The Court’s concern relates to ‘the need to ensure that the secrecy of surveillance measures does not result in the measures being effectively unchallengeable and outside the supervision of the national judicial authorities and of the Court’ [para 171]. This broad approach to standing is, as noted by Judge Dedon’s separate but concurring opinion, in marked contrast to the approach of the United States Supreme Court in Clapper where that court ‘failed to take a step forward’ (Opinion, section 4).

The reassessment of ‘victim status’ simultaneously determines standing, the question of the applicability of Article 8 and the question of whether there has been an infringement of that right. The abstract nature of the review then means that a lot falls on the determination of ‘in accordance with the law’ and consequently the question of whether the measures (rather than individual applications) are necessary in a democratic society. The leads to a close review of the system itself and the safeguards built in. Indeed, it is noteworthy that the Court did not just look at the provisions of Russian law, but also considered how they were applied in practice.

The Court seemed particularly sceptical about broadly determined definitions in the context of ‘national, military, economic or ecological security’ which confer ‘almost unlimited degree of discretion’ [para 248]. Although the system required prior judicial authorisation (noted para 259], in this case it was not sufficient counter to the breadth of the powers. So, prior judicial authorisation will not be a ‘get out of gaol free’ card for surveillance systems. There must be real oversight by the relevant authorities.

Further, the Court emphasised the need for the identification of triggering factor(s) for interception of communications, as otherwise this will lead to overbroad discretion [para 248]. Moreover, the Court stated that the national authorisation authorities must be capable of ‘verifying the existence of a reasonable suspicion against the person concerned’ [260-2], which in the context of technological access to mass communications might be difficult to satisfy. The Court also required that specific individuals or premises be identified. If it applies the same principles to mass surveillance currently operated in other European states, many systems might be hard to justify.

A further point to note relates to the technical means by which the interception was carried out. The Court was particularly critical of a system which allows the security services and the police the means to have direct access to all communications. It noted that ‘their ability to intercept the communications of a particular individual or individuals is not conditional on providing an interception authorisation to the communications service provider’ [para 268], thereby undermining any protections provided by the prior authorisation system.

Crucially, the police and security services could circumvent the requirement to demonstrate the legality of the interception [para 269]. The problem is exacerbated by the fact that the equipment used does not create a log of the interceptions which again undermines the supervisory authorities’ effectiveness [para 272]. This sort of reasoning could be applied in other circumstances where police and security forces have direct technical means to access content which is not dependent on access via a service provider (e.g. hacking computers and mobiles).

In sum, not only has the Russian system been found wanting in terms of compliance with Article 8, but the Court has drawn its judgment in terms which raised questions about the validity of other systems of mass surveillance.

*Reblogged with permission from the IALS Information Lawand Policy Centre blog

Barnard & Peers: chapter 9

Photo credit: journalofhumanitarianaffairs.blogspot.com

Hidden cameras and human rights: the ECHR clarifies the position

Lorna Woods, Professor of Internet Law, University of Essex 

When does the use of hidden cameras by journalists breach human rights? This issue was clarified by recent judgment of the European Court of Human Rights in Bremner v Turkey. The case was brought by an Australian national about the use of surreptitious filming of him in his flat talking about Christianity.  The filming took place as part of the making of a documentary about “foreign pedlars of religion” in Turkey.  The programme broadcast revealed Bremner and in particular did not blur his face.  Bremner then sued the programme makers, but was unsuccessful given the public interest in the topic, and the matter came before the ECHR.  Bremner argued that there had been a violation of Article 8 ECHR (right to private life) as regards the content of the programme and the failure of the Turkish courts to indemnify him. In Bremner’s view the programme exposed him to threats of aggression.  He also referred to Articles 6 (right to a fair trial), 9 (right to religion) and 10 (freedom of expression).

The Court confirmed that the obligation under Article 8 was engaged via the taking of unwanted photos or video, and that Art 8 included positive obligations on the state to protect the right to private life, even as far as between individuals (citing the Grand Chamber decision in Fernandez Martinez v. Spain).  Although the boundary between the positive and negative aspects of the right is sometimes a little fuzzy, as the Court recognised, in this context the court emphasised the central point was the need to identify the appropriate balance between the individual and the public interest.   The Court also re-iterated that in cases involving the media and the balance between Articles 8 and 10, the outcome should not differ on whether the case was brought by the subject of the story under Article 8 or by the media under Article 10, and the margin of appreciation should be the same.  It reiterated its principles about the importance of the press (reflecting the Turkish government’s arguments on this point) but also the factors in Axel Springer and Von Hannover about the scope of the public interest when balanced against the right to private life.  Although the subject matter of the documentary was in the public interest (and moreover did not amount to hate speech), techniques such as the surreptitious use of cameras were damaging to private life and must be used with restraint and in accordance with ethical principles.  While the Court did not rule out the use of such techniques altogether (referring to De La Flor Cabrera in which video surveillance in a public place which was used for evidence in court did not constitute a violation), it suggested that they would be used as a mechanism of last resort where the information would be otherwise unobtainable.

In terms of balancing freedom of expression with the right to private life, the court noted that Bremner was – contrary to the assertions of the Turkish Government- not a public figure and was not in the public arena.  Specifically, the Court rejected the argument that because Bremner was a journalist he would be a public figure.  Bremner was not acting in that capacity and he was unknown to the general Turkish public.  There was nothing to suggest to him that he might be the subject of public criticism; rather he thought he would be discussing Christianity with some people who had expressed an interest in the subject.

Looking at the failure to blur Bremner’s face, the Court noted that the domestic courts had not considered what Bremner’s identification added to the public interest bearing in mind that he was not famous.  The Court distinguished this case from Haldimann, in which a violation of the Article 10 rights of journalists had been found.  In that case, and what was crucial to the determination, was that the journalists had pixelated the face and altered the voice of the person in issue. Thus, despite the margin of appreciation, the national courts had not struck an appropriate balance between freedom of expression, nor afforded adequate protection to Bremner’s Article 8 rights.  Consequently there had been a violation of this right.

As regards the right to religion, Bremner had not exhausted national remedies and the claim was therefore inadmissible.  The other two claims were also found to be inadmissible.

Comment

This case follows reasonably swiftly on from the case of Haldimann earlier this year, which also concerned surreptitious journalistic techniques.  It may also be seen to be a contrast to Haldimann.  There journalists had been subject to some low level fines for surreptitious filming and the Court found a violation of Article 10.  Here, a case brought under Article 8, the State was found not to have done enough to protect privacy rights.  Both cases relied on the principles laid down  in Axel Springer: the contribution to a debate of general interest, how well-known the person being reported on is and the subject of the report, the person’s prior conduct, the method of obtaining the information, the veracity, content, form and repercussions of the report, and the penalty imposed.  In Haldimann, the Court noted that although the subject of the report was a private individual, the report criticised certain commercial practices rather than focussing on the individual, the business practices were a matter of public interest, and – crucially – his face was obscured through pixellation and his voice altered.  The court has repeatedly held that safeguards afforded to journalists reporting on matters of public interest apply subject to the condition that they are acting in good faith, in accordance with the ethics of journalism and have a sufficient factual basis for their reporting. In Haldimann, the subject did not even challenge the journalists’ account of events.  Haldimann was seen as important because of the acceptance of the infringement of the Article 8 rights of a private individual as opposed to a public person. 

Bremner shows that there are limits to this possibility. A crucial distinction between the cases was the fact that Bremner was not disguised – his face was broadcast without pixellation.  Indeed, the Court in Bremner suggested that irrespective of the significance of the story in general, a failure to blur an individual’s face would be problematic [para 81].  Another difference – though the Court did not emphasise this element - was the invasion took place in his flat; even though Article 8 applies to business premises, presumably an invasion into the home carries more weight than intrusion as a business.  Even in Haldimann it was unclear whether the Court would support an intrusion where there to be other options for acquiring the evidence to support a story; Bremner re-iterated the principle that such techniques should be used only as a matter of last resort.  While this arguably reintroduces some doubt in the assessment, it certainly matches the approach taken by broadcasters in this country, and even the terms of the Editors’ Code in respect of the press.  What does seem clear (and lines up with the much older case of Peck) is that when footage or photographs of private individuals are broadcast, pixellation and other methods of disguising the subject are important and indeed may be a boundary line factor between acceptable and unacceptable.  What is less clear from this is whether the filming of subjects in their homes is a separate infringement against which the state must protect.

Barnard & Peers: chapter 9

Photo credit: http://karachi.newspakistan.pk/2012/01/13/investigative-journalism-is-it-ethical-to-use-hidden-cameras/