- Business in Poland -
SLAPP lawsuits – legal actions aimed at intimidating and silencing critics
A SLAPP lawsuit is an abuse of legal instruments involving the initiation of proceedings against individuals or organizations speaking out on a matter of public interest, primarily to create an intimidating effect, impose costs, discourage further criticism, or force self-censorship.
The acronym SLAPP stands for Strategic Lawsuits Against Public Participation. In practice, the question "what is SLAPP?" often arises in disputes concerning press publications, statements by activists, whistleblowers, experts, employees, non-governmental organizations, market competitors, or individuals commenting on the actions of institutions and businesses.
Not every claim for the protection of personal rights, defamation, or damage to reputation is a SLAPP lawsuit. The line is crossed where the protection of a legitimate legal interest gives way to a repressive or deterrent function. The assessment always depends on the facts of the case, the content of the statement, the context of the public debate, the claims made in the lawsuit, and the conduct of the parties.
SLAPP in Poland - where does the risk arise?
SLAPP in Poland often concerns disputes at the intersection of civil law, criminal law, press law, and the protection of personal rights. Claims may include demands for an apology, compensation for non-material harm, removal of a publication, a ban on further dissemination of specific statements, or interim measures securing claims before the case is concluded.
The background may also include private criminal indictments for defamation under Article 212 of the Polish Criminal Code or allegations of insult under Article 216 of the Polish Criminal Code [1]. In civil proceedings, the legal basis is often Articles 23 and 24 of the Polish Civil Code, which protect personal rights, including good name, reputation, privacy, and image [2].
These instruments are lawful and often necessary. The problem arises when the scale of the demands, the number of proceedings, the timing, the language used in legal submissions, or the economic advantage of the claimant indicate that the main purpose is not genuine legal protection, but silencing criticism.
In media and reputation cases, it is essential to correctly classify a statement as either a fact or an opinion. Statements of fact may be subject to proof. Assessments and comments enjoy broader protection, provided they have a factual basis and remain within the boundaries of public debate. In this area, an analysis of the standards applicable to personal rights and media law may be helpful.
SLAPP lawsuit - typical warning signs
A SLAPP lawsuit does not have one formal label. It may look like an ordinary civil claim, an application for interim measures, a private criminal indictment, or a series of pre-litigation demands. The risk of SLAPP may be indicated in particular by:
- grossly excessive financial claims in relation to the effects of the publication or statement,
- multiple parallel proceedings against several individuals, editorial teams, or organizations,
- a demand for the immediate removal of content without a substantive response to the facts,
- applications for broad interim measures that may paralyze the publication or the critic's activities,
- a focus on costs, time, and psychological pressure rather than on correcting information on the merits,
- suing individuals or entities with weaker organizational or financial resources, even though the dispute concerns a matter of public interest.
For businesses, the risk works both ways. An entrepreneur may genuinely be harmed by an unreliable publication and may need swift reputation protection. At the same time, the entrepreneur may be accused of using SLAPP tactics if the legal response is disproportionate. For this reason, any decision to file a lawsuit should be preceded by an analysis of the purpose, evidence, proportionality of the claims, and communication risk.
EU anti-SLAPP directive - key principles
EU Directive 2024/1069 of 11 April 2024 concerns the protection of persons who engage in public participation from manifestly unfounded claims or abusive court proceedings in civil or commercial matters with cross-border implications [3]. Member States were required to transpose its provisions into national law by 7 May 2026.
The directive provides mechanisms intended to reduce the chilling effect. These include the possibility of early dismissal of manifestly unfounded claims, security for the costs of proceedings, ordering the claimant to bear costs, and deterrent measures against the abusive use of proceedings. The protection of persons participating in public debate is also significant, including journalists, publishers, civil society organizations, academics, human rights defenders, and other participants in public life.
However, the scope of the directive is not unlimited. Its exclusions and limitations must be framed precisely: tax, customs, or administrative matters; state liability for acts and omissions in the exercise of state authority; criminal matters; and arbitration. This means that the directive focuses on civil and commercial matters with cross-border implications, not on every conflict concerning speech.
How to defend against a SLAPP lawsuit?
Defending against a SLAPP lawsuit requires a combination of legal, evidentiary, and communication arguments. The first step is to determine whether the statement concerned a public matter, the public interest, or the activities of an entity of public relevance. Next, it is necessary to assess whether the disputed statements were facts, opinions, quotations, reports based on documents, or commentary.
In practice, the following are important:
- securing sources, documents, correspondence, and recordings confirming the basis for the statement,
- analyzing the diligence of the author, editorial team, or organization,
- assessing the proportionality of the claims made in the lawsuit,
- identifying the public interest and the context of the debate,
- considering procedural motions aimed at limiting the abuse of procedural rights,
- maintaining a consistent communication strategy so as not to deepen reputational risk.
In defamation cases, it is important to distinguish criminal liability from civil liability. The prerequisites, burden of argument, and possible consequences differ. The issue of liability for media-related allegations is discussed in more detail in the material on how to conduct a defamation lawsuit.
How to avoid an allegation that a legal response is a SLAPP?
An entity whose reputation has been harmed does not have to waive legal protection. However, it should choose measures that are proportionate to the infringement. In practice, it is worth first considering a correction, a reply or statement of position, a request to remove specific false information, mediation, or claims limited to the actual harm suffered.
Automatic, mass, and excessive actions are risky. High financial claims, the threat of multiple proceedings, and demands for a total ban on speech may be perceived as an attempt to silence criticism. For management boards, compliance teams, and legal departments, it is crucial that every response be based on evidence, a legal interest, and an analysis of reputational consequences.
In matters involving reputation, media, criminal liability, and crisis management, Kopeć & Zaborowski analyzes both the risk of a SLAPP lawsuit and the legitimacy of protective measures taken by entities affected by unreliable publications. This material is for informational purposes only and does not constitute legal advice. If an assessment of a specific situation is needed, it is advisable to contact the firm via the KKZ website.
FAQ - SLAPP
What is SLAPP?
SLAPP is a legal proceeding used mainly to intimidate or silence a person participating in public debate, rather than solely to protect a genuinely infringed right.
Is every personal rights lawsuit a SLAPP lawsuit?
No. A claim for the protection of personal rights may be fully justified. A SLAPP lawsuit can be identified only when the circumstances indicate an abuse of rights or disproportionate pressure against a critic.
Is SLAPP in Poland a separate type of case?
SLAPP is not the name of a separate substantive legal claim. However, it may arise in civil, criminal, press, and reputation-related cases, depending on the legal measures used.
What does the EU anti-SLAPP directive cover?
Directive 2024/1069 concerns the protection of persons participating in public debate from manifestly unfounded or abusive civil or commercial proceedings with cross-border implications.
What are typical examples of a SLAPP lawsuit?
An example may be a lawsuit with a very high financial claim against a journalist, whistleblower, or civil society organization where the disputed statement concerned a matter of public interest and the primary aim of the lawsuit is to create a chilling effect.
How can a company reduce the risk of being accused of SLAPP?
A company should respond proportionately, identify specific false information, document the infringement, and avoid demands that may appear to be an attempt to completely block criticism.
Bibliography
- [1] Act of 6 June 1997 - Polish Criminal Code, Journal of Laws 1997 No. 88, item 553, as amended, Articles 212 and 216.
- [2] Act of 23 April 1964 - Polish Civil Code, Journal of Laws 1964 No. 16, item 93, as amended, Articles 23 and 24.
- [3] 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"), Official Journal of the European Union L, 2024/1069, 16.04.2024.
- [4] Commission Recommendation (EU) 2022/758 of 27 April 2022 on protecting journalists and human rights defenders who engage in public participation from manifestly unfounded or abusive court proceedings.
Author: adw. Maciej Zaborowski, Managing Partner
E-mail: m.zaborowski@kkz.com.pl
