SLAPPs: the use of the past as an antidemocratic weapon
SLAPPs represent a particular type of judicial harassment, allowing powerful actors to misuse the legal and judicial systems in order to silence critical voices – including activists, non-profit organizations, journalists and media outlets – exercising their own fundamental rights, in particular the right to freedom of expression.
As recalled by the recently adopted DIRECTIVE (EU) 2024/1069 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 11 April 2024 on protecting persons who engage in public participation from manifestly unfounded claims or abusive court proceedings (‘Strategic lawsuits against public participation’), these forms of abuse usually result from the exercise of an act of citizen participation that concerns a matter of public interest, such as, for example, corruption, public procurement, criminal justice and the judicial system, labor rights, social housing, migration, taxation, organized and financial crime.
However, this is not an exhaustive list, as SLAPPs are not limited to any specific area of public interest.
Under populist governments, strategic lawsuits against public participation have increasingly become a cunning way to suppress free speech and silence critical voices. In these cases, these lawsuits differ from more traditional forms as they are brought by pro-government individuals or organizations.
In particular, in Poland, it has been observed that a particular subcategory of SLAPPs related to official state historical policy is used to further reinforce the government’s preferred historical narratives. Moreover, it contributes to limiting public debate about the past, including through harassment of those who reveal and discuss the dark sides of the country’s history.
The State supported or initiated lawsuits demanding the protection of an alleged “historical truth” and “national identity”. Often, these lawsuits were baseless and aimed to exert a chilling effect on public debate and reinforce the preferred official historical narrative.
In 2018, the ruling government introduced an amendment to the Act on the Institute of National Remembrance (Ustawa o Instytucie Pamięci Narodowej) aimed at criminalizing defamation of the Polish state and nation by falsely claiming responsibility or co-responsibility for crimes committed by German Nazis during World War II in occupied Poland. The amendment was partially repealed due to international pressure. The criminal law sanctions were removed, with the civil law part remaining in force. The political agenda behind this memorial law and the mechanism used in it, including the authorization of non-governmental organizations to file lawsuits, are aimed at bringing to trial anyone who dares to question the heroic vision of the national past.
In this way, the law became an instrument of top-down control of the social perception of history, with important implications for both the present and the future.
One of the most well-known lawsuits, even internationally, initiated in the context of a public debate about Poland’s past, relates to the Holocaust and other atrocities committed against Jews during World War II in occupied Poland. The SLAPP was brought against the distinguished and renowned Holocaust scholars Barbara Engelking and Jan Grabowski. It was not based on the aforementioned amendment or any other law of memory, as it turned out that the ordinary tools of civil law could be used to achieve the goal of memory governance in line with the government’s historical policy.
The Polish legal system, like all other legal systems guaranteeing the protection of personality rights, allows anyone who considers that his or her personality rights have been violated to bring actions against individuals or institutions.
The lawsuit concerned a brief passage in the 1,700-page academic book, co-authored and co-edited by Barbara Engelking. Jan Grabowski was sued as co-editor of the book. The book, published in 2018, summarized a multi-year research project of the Polish Center for Holocaust Research at the Institute of Philosophy and Sociology of the Polish Academy of Sciences.
In the book’s controversial passage, Engelking recounted the testimony of a Holocaust survivor, Estera Drogicka (after the war known as Maria Wiltgren):
“However, Estera Drogicka (née Siemiatycka), after losing her family, being in possession of documents purchased from a Belarusian woman, decided to leave for Prussia to work, and was supported by Malinowo’s village leader, Edward Malinowski (he stole from her at the time) – and in December 1942 she ended up in Rastenburg (Kętrzyn) to work as a domestic servant in the German Fittkau family. There she not only met her second husband (a Pole who worked with her), but also developed her business operations by sending Malinowski packages with items for sale. She would visit him when she went “home” on vacation. She realized that he was co-culpable for the death of a few dozen Jews who were hiding in the forest and were handed over to the Germans; despite this, she gave false testimony to defend him during the trial after the war.”
These dozen lines of text formed the basis of a lawsuit brought against Engelking and Grabowski by the niece of the village leader Malinowski, Filomena Leszczyńska. The plaintiff alleged that several of her personality rights had been violated by the academics, including her right to worship the memory of the deceased, the right to dignity, and the right to national pride and identity.
In February 2021, the Warsaw Regional Court declared that the applicant’s personality right to respect for the memory of the deceased had been violated. In August 2021, the Warsaw Court of Appeal overturned the first instance judgment, dismissing the claim in its entirety. The decision was based on two factors: the court’s recognition of the prevailing need to protect academic freedom and freedom of expression and, secondly, the recognition that the role of a judge is not to step into the role of a historian and that the court’s task is not to evaluate historical sources and materials. Both of these decisive factors have also become firmly rooted in the case law of the European Court of Human Rights, widely cited by the Polish Court of Appeal.
One of the most important indicators of the SLAPP nature of this case is the involvement (including in financial terms) by the plaintiff in a non-governmental organization – Reduta Dobrego Imienia – Polska Liga Przeciw Zniesławieniom (Polish League Against Defamation), whose financial and ideological links with the former Polish authorities were revealed by the independent Polish media.
This case shows us that SLAPPs can also interpose themselves in relation to historical narratives, favoring historical whitewashing, a trend that occurs not only in Poland, but also in the rest of Europe. Questioning the predominant State narrative on issues of memory should not be a reason for sanction, but an opportunity to reflect on the historical narrative that has been imposed on society. The interposition of SLAPPs, along with an abusive use of the past, contributes to curtailing the freedom of public debate and, more specifically, to undermining the core of the democratic system.
To learn more about the case, you are invited to consult the article: Bodnar, Adam, y Aleksandra Gliszczyńska-Grabias. 2023. «Strategic Lawsuits against Public Participation (SLAPPs), the Governance of Historical Memory in the Rule of Law Crisis, and the EU Anti-SLAPP Directive». European Constitutional Law Review 19 (4): 642-63. https://doi.org/10.1017/S1574019624000063.
