The legal advisory board of the German No SLAPP contact point in conversation: Madeleine Petersen Weiner
The No SLAPP contact point for the protection of journalistic work in Germany is currently supported by 17 legal experts to ensure that the training courses and other services offered by the contact point are of the highest professional standard. And to provide the best possible legal advice in specific SLAPPs, in cases with press and expression law, labor law, but also criminal law dimensions.
In this series of interviews, we introduce the advisory boards individually, today with perspectives from Madeleine Petersen Weiner, who is active in Heidelberg and Berlin. Madeleine Petersen Weiner is a trainee lawyer at the Berlin Court of Appeal and a research assistant at the Humboldt University in Berlin. She is also a doctoral candidate at the University of Heidelberg, as part of the International Max Planck Research School for Successful Dispute Resolution in International Law. In her dissertation, she deals with the problems arising in the cross-border context of SLAPPs and develops solutions at the level of private international law and international civil procedure law.
How do you relate to the topic of SLAPP - which forms of intimidation through legal means do you deal with particularly intensively?
I wrote my dissertation on "SLAPP Suits - An International Private Law Analysis of Cross-Border Intimidation Claims" at the University of Heidelberg. The current legal situation creates a particularly favorable environment for SLAPP plaintiffs to intimidate SLAPP defendants through litigation. In my dissertation, I therefore looked at these challenges and how to overcome them.
The background to this is that SLAPP plaintiffs often base their claims on alleged violations of personality rights. Under the current legal situation, these potentially open up jurisdictions throughout the EU where they can sue the SLAPP defendants. This makes it almost impossible for SLAPP defendants to predict where they will potentially have to answer and creates a threat that can result in a chilling effect on freedom of expression.
In addition, the law applicable to SLAPPs is not harmonized across the EU. This means that journalists, for example, cannot foresee in advance which law will determine whether their statements are permissible. This potentially leads to self-censorship because they have to align themselves with the strictest law. This results in a "race-to-the-bottom effect", which is questionable in terms of freedom of expression on issues of public interest.
Finally, SLAPPs in third countries (such as the United Kingdom or the USA) have a particularly intimidating effect on people who participate in public discourse due to various procedural, substantive or factual peculiarities. A SLAPP judgment obtained in another country can lead to great uncertainty for those affected, as it could be recognized and enforced at the defendant's place of residence in the EU. This could contribute to further uncertainty for SLAPP defendants. In my dissertation, I have therefore developed reform proposals to solve these specific international private law problems.
What is your advice for those affected by legal intimidation attempts?
During my doctoral studies, I had numerous opportunities to talk to practitioners who defend clients against SLAPPs. My impression is that going on the "counter-offensive" can be a promising means of fighting SLAPPs. SLAPPs are characterized in particular by their abusive, extra-procedural objective. The aim is to suppress the statements of the SLAPP defendants (often journalists, activists or NGOs). If the SLAPP defendants succeed in preventing these effects by going public with the requested injunctions or claims, the SLAPP plaintiffs may withdraw their lawsuits so as not to risk further negative attention to their litigation or the underlying issue. A striking example of this is the so-called "McLibel case": two activists from Greenpeace London distributed leaflets accusing McDonald's of poor working conditions, cruelty to animals and promoting poor nutrition for children. The activists made the legal action against them public and McDonald's suffered considerable reputational damage as a result. The content of the leaflets also attracted more attention than would have been the case without the court case. This sociological phenomenon is known as the "Streisand effect". It describes the process whereby (legal) action against an unwelcome act generates the public attention that this action is trying to prevent. This can be used for the defense against SLAPPs.
In the EU Directive "on the protection of persons who engage in public participation against manifestly unfounded claims or abusive litigation" SLAPP was officially defined for the first time in Europe. (To what extent) does this wording already influence your work, even before it is transposed into national law?
As part of my dissertation, I dealt extensively with the definition of SLAPPs from the directive. On the one hand, this already contains many initial attempts to make the phenomenon "tangible". On the other hand, however, there is still a lack of clear-cut demarcation criteria to ensure a differentiation between legitimate actions, for example to protect a good reputation, and abusive legal proceedings against public participation. In my dissertation, I have commented on these characteristics in detail. However, I am of the opinion that only the transposition into national law, further discussion in the literature and, if necessary, clarification by the ECJ can and should give this definition further contours. In particular, the definition is influenced to a considerable extent by its comparative legal origins in US anti-SLAPP laws. The starting position there, such as the procedural and substantive legal environment, but also the constitutional granting of the standards of "free speech", is already different from that at EU level. Furthermore, even within the EU, there are differences in how the tension between freedom of expression and the protection of personality is structured. The EU legislator should carefully weigh up these differences and take them into account in an EU-wide definition of SLAPPs.
What should legislators in Germany pay particular attention to when implementing the law?
For national implementation, the problem already raised is that there are differences within the EU, both in terms of the occurrence of SLAPPs and the protection and design of public participation. A "one-size-fits-all" solution should be rejected. This does not mean that SLAPPs cannot occur in Germany. In principle, however, the courts have the means and are therefore in a position to recognize abusive claims at an early stage and reject them. This prevents the desired chilling effect from being achieved through lengthy proceedings and a de facto commitment of resources by the defendant. The legislator should therefore focus in particular on the specific problems that arise in this country: These include the fact that defendants often have to obtain advice at the pre-litigation stage in relation to cease-and-desist declarations demanded by plaintiffs. The defendants cannot recover these costs. Furthermore, the plaintiffs may initially demand excessive damages, which can only be reduced by the court setting an appropriate value in dispute. Finally, the range of support and advice available to defendants should be expanded. This is the only way to ensure a procedural equality of arms, despite a possible (and in the case of SLAPPs, typical) imbalance of resources. This is addressed both in the directive and in the accompanying recommendation.
What public understanding of SLAPP do you propose until implementation - which cases should be understood as SLAPP, which perhaps not? What do you think is the most important thing the public should know about SLAPPs?
SLAPPs are abusive lawsuits that pursue unfounded claims and are directed against the public participation of the defendant. As such, they can have an intimidating effect on defendants, a chilling effect on third parties and a chilling effect on public discourse as such. Typically, SLAPPs are initiated by individuals or companies with strong resources. The defendants are usually people who report or express their opinion on events that are in the public interest as a result of their role in society.
This definition is an approach to conceptually approach the phenomenon of SLAPPs. It does not omit important manifestations, nor does it include phenomena that pursue a legitimate concern and therefore do not deserve to be called SLAPPs. However, each individual characteristic must be discussed in detail.
Despite all concerns about the functioning of public discourse without fear of reprisals or influence, it is clear that in a democratic constitutional state, the right to protection from false allegations and defamation must be just as protected as the right to freedom of expression. The protection of personality is not a second-class fundamental right. The "threshold" for SLAPP is only crossed when the lawsuit no longer pursues a legitimate concern and serves the ostensible purpose of using the burdens of civil proceedings to force a person to give up or cease their legitimate participation in public discourse or to retract statements. This must be clearly expressed in a definition. In my definition, this is taken into account in particular by the fact that the claims must be unfounded and the extra-procedural (intimidating, deterrent, "freezing") effect is paramount.
In your opinion, how can legal attempts at intimidation be warded off particularly well?
There is (unfortunately) no simple answer to this question. However, my research as part of my dissertation, particularly taking into account discussions with practitioners, has clearly shown that SLAPPs can best be averted with the help of a "holistic" solution: Firstly, this includes a better understanding of the phenomenon within the justice system, among those affected and in society as a whole. This can be countered with the help of training and further awareness-raising, for example. In addition, public discourse must be protected as a space for speech and counter-speech and critical voices must be heard. It is obvious that the public debate should not actually take place in court. Furthermore, the actual circumstances must not give rise to allowing the de facto suspension effect within the framework of SLAPPs in the first place. The potentially long duration of civil proceedings as well as high litigation, legal and travel costs are particularly relevant in this regard. Finally, a legislative solution to the problem should take into account the implications of private international law, which are inherent to the SLAPP problem at EU level, as outlined above. A project that addresses the problem of SLAPPs should consider these different components, which are mutually dependent and help SLAPP claimants to succeed with their claims.