...Nebojsa Djuricic
“Ako sloboda uopšte nešto znači,
onda znači pravo da se ljudima kaže ono što ne žele da čuju.”
George Orwell
Freedom of speech represents one of the basic foundations of a democratic society. She is protected by the Constitution of the Republic of Serbia, as well as numerous international documents. However, like many other rights, freedom of expression is not enough if it remains only proclaimed. To be real, it requires constant protection, as well as an active attitude of individuals and society as a whole towards its preservation.
Over time, various mechanisms were used to try to limit or make the freedom of speech meaningless. Individuals who speak publicly and exercise their right to freedom of expression do not, as a rule, do so in order to protect their own interests, but in order to protect the public interest. journalists, human rights activists, environmental activists and activists for the protection of consumer rights address the public in order to contribute to the protection of common goods or the improvement of the rights of the entire community. Their action, by its very nature, is directed towards the general interest. When pressure is exerted on such individuals by initiating court proceedings, then one can talk about SLAPP lawsuits.
Freedom of expression, however, is not the only right that enjoys constitutional and international protection. Persons who are discussed in public have the right to protection of personal dignity, i.e. to protection of honor, reputation and privacy. There is no hierarchy between these rights. In each specific case, the court evaluates which of the conflicting rights it will give priority to. The right to access the court for the protection of personal dignity is a legitimate and important feature of a democratic society. This is precisely why the question arises as to how the right to file a lawsuit can be understood as an attack on freedom of expression.
The answer lies in the purpose for which certain legal proceedings are initiated. In SLAPP lawsuits, the goal is not to achieve justice, but to bring the individual into court proceedings. The intention is not to win in court, but to exhaust yourself: financially, professionally, psychologically, physically...
Just participating in court proceedings is a source of discomfort and stress for most people. The court procedure is formal, takes place through predetermined stages and lasts a certain period of time. It inevitably entails costs, regardless of the procedural role of the parties, whereby the party that loses the dispute also bears the costs of the opposing party. In criminal proceedings, these consequences can be even more serious. For certain criminal acts, it is possible to impose a prison sentence, while coercive measures may be applied to the participants in the proceedings in order to ensure their presence before the court. No matter how sure you are of success in the dispute, the very possibility of such serious consequences exerts serious pressure on the individual. The court thus becomes a tool for psychological pressure, causing stress, financial exhaustion.
WHAT CAN WE DO ABOUT THIS ISSUE
Formally speaking, the court applies the law in proceedings that have the characteristics of a SLAPP lawsuit. The court conducts proceedings in order to protect a person's right to respect for personal dignity. However, the court is obliged to recognize the moment when the law is used contrary to its purpose. Abuse of the right to sue is not a new phenomenon, neither in legal theory nor in judicial practice. It also exists in classic civil disputes.
However, the consequences of abuse of rights in the case of SLAPP lawsuits have a different, systemic character. They are not only harmful to the individual who is sued, but to society as a whole. SLAPP lawsuits target not only individuals but the very idea of public debate and public participation in protecting the public interest. When critical thinking is systematically exposed to the risk of court proceedings, the so-called "chilling effect": people self-censor, withdraw and remain silent. In this sense, SLAPP suits are not private disputes. They represent a political mechanism because they influence who is allowed to speak, about what and under what conditions.
A court that passively accepts every lawsuit as "another dispute" risks becoming an instrument in stifling public discussion. Conversely, a court that knows how to recognize abuse and react to it protects not only the individual, but also the democratic order. That's not activism. That is responsible judging.
This phenomenon is recognized both in the practice of the European Court of Human Rights and at the level of the European Union and the Council of Europe.
In 2024, the European Union adopted the Directive against SLAPP lawsuits. The very fact that such a directive was passed confirms that the right to sue can be abused in a way that threatens basic democratic values. The directive starts from a simple but essential idea: the courts must have the tools to recognize and rule on patently unfounded claims at an early stage, before they produce harmful consequences. Although the directive formally refers to cases with a cross-border element, its message is much broader: the judiciary must not be neutral towards the abuse of its own mechanisms.
A similar message is sent by the Recommendation of the Council of Europe, which applies to all its member states. This document calls on courts and legislators to develop clear criteria for recognizing SLAPP claims and to actively protect freedom of expression and public participation in matters of general interest.
Both international instruments provide for the obligation to introduce mechanisms for early dismissal, that is, the rejection of clearly unfounded lawsuits. However, equally important, and in some cases even more important, are the mechanisms that prevent the tactics of delaying the proceedings, provide compensation for the costs of victims of SLAPP lawsuits, enable the recognition of SLAPP victims and the realization of the right to compensation for damages.
The goal of the SLAPP filer is to keep the court proceedings as long as possible. Therefore, the lawsuit is often drafted so that it does not contain an obviously unfounded claim. This is particularly pronounced in disputes against the media. Texts dealing with topics of public interest are often the result of extensive research work, the use of a large number of sources and multiple verification of information. Such texts are then attacked with seriously prepared and voluminous lawsuits. In such situations, there will be no conditions for early dismissal or rejection of the claim, but the implementation of the procedure is inevitable.
This is precisely where the key role of the court comes into play. The court is obliged to recognize whether there is abuse not only of the right to file a lawsuit, but also of certain procedural rights. In court practice, it is not uncommon for parties to avoid receiving documents, to be unjustifiably absent from hearings, or to resort to various forms of procrastination. However, in SLAPP lawsuits, the situation is often reversed: the plaintiff is the one who applies stalling strategies, with the goal of keeping the defendant in court as long as possible. The role of the court is to recognize and prevent such abuses.
In order for the court to be able to identify proceedings in which there is a risk of abuse of procedural rules, the Recommendation of the Council of Europe contains indicators that indicate that these are SLAPP lawsuits. These indicators are a practical tool that can significantly help judges in their daily work. By using these indicators, the court will recognize cases in which there is a danger that the prosecutor will abuse his rights, which the court is obliged to prevent.
DO WE NEED A SPECIAL LAW
At this time, it is not necessary to enact specific legislation in order for the courts to effectively deal with SLAPP suits. The existing legal framework already contains mechanisms that, if applied consistently and responsibly, enable the recognition and sanctioning of abuses.
The Law on Civil Procedure clearly stipulates the court's obligation to prevent and punish the abuse of any procedural right. This obligation is not an exception, but one of the basic principles of the procedure. SLAPP lawsuits are precisely based on the abuse of procedural powers, which is why the court already has the legal authority to react to such behavior.
There is a particularly significant scope for improvement of practice in the matter of the method of calculating the costs of proceedings in disputes which by their nature are disputes for the compensation of non-material damages. In accordance with the current practice, the plaintiff who emphasizes an extremely high monetary claim, and achieves minimal success in the procedure, despite only partial success, will be awarded almost the full costs of the procedure. Such an approach can encourage exactly the kind of procedural strategy that is characteristic of SLAPP suits. Changing practice in case of partial success in a dispute can have a strong deterrent effect, without any normative intervention.
An equally important element is the continuous training of judges and lawyers. Understanding what constitutes a SLAPP lawsuit, how to recognize the abuse of procedural rights, but also how to interpret the concept of public interest and the importance of freedom of expression, can have an immediate and visible impact on judicial practice. The judiciary reacts not only through norms, but also through the way in which these norms are interpreted and applied. In this sense, changing the approach and strengthening awareness of this phenomenon can give faster and more effective results than passing new laws. The key question is not whether we have enough rules, but whether we use the existing rules in accordance with their purpose.
CONCLUSION
It is important to be clear - fighting SLAPP lawsuits does not mean limiting the right to access the courts. On the contrary, it means preserving that right from its abuse. The right to sue exists to protect violated rights, not to create fear. The moment when the judicial process is used as a means of pressure, and not as a path to justice, that right loses its legitimate character.
That's why the debate about SLAPP lawsuits is always a debate about what kind of society we want. Do we want a society where criticism is punished by process or a society where public speech is protected even when it is unpleasant, harsh or politically unpalatable. It is not an abstract question, but a question that is resolved every day in courtrooms.
The author is a judge of the High Court in Belgrade and president of the Board of Directors of the Forum of Judges of Serbia
