When The Law Becomes A Weapon: Understanding SLAPPS And The Fight For Freedom Of Expression -By Job Joseph

ABSTRACT

The law is ordinarily regarded as an instrument for the protection of rights, the resolution of disputes and the administration of justice. However, the legal process may, in certain circumstances, be used in a manner that burdens, intimidates or discourages individuals and organisations from participating in matters of public interest. Strategic Lawsuits Against Public Participation (SLAPPs) have emerged as an important legal and human-rights concern because of their potential effect on freedom of expression, journalism, civic participation and accountability. This article examines the concept of SLAPPs, their relationship with defamation and other causes of action, and their implications for freedom of expression in Nigeria. It considers the constitutional and regional legal framework protecting expression, examines selected Nigerian examples including the cases involving Agba Jalingo, SERAP and WikkiTimes, and considers the international experience with anti-SLAPP mechanisms. The article argues that the existence of legitimate defamation claims must be recognised, but the legal system should equally guard against the misuse of litigation as a means of imposing disproportionate financial and procedural burdens on persons engaged in legitimate public participation. It recommends the development of a Nigerian anti-SLAPP framework, stronger judicial case-management mechanisms, legal support for journalists and civil-society organisations, and responsible journalism as complementary safeguards.

Keywords: SLAPP, freedom of expression, defamation, public participation, journalism, abuse of process, human rights.

INTRODUCTION

Law is generally understood as an instrument for protecting rights, maintaining order and providing remedies where rights have been violated. Litigation is therefore an important mechanism through which individuals and organisations seek justice. However, the same legal process that provides a remedy to a person whose rights have been violated may, if improperly used, impose substantial financial, professional and psychological burdens on another person. This raises an important question: Can a legal system designed to protect rights also be used to discourage people from exercising those rights? This question lies at the centre of the debate surrounding Strategic Lawsuits Against Public Participation (SLAPPs). SLAPPs generally refer to legal proceedings brought against individuals or organisations because of their participation in matters of public interest, where the proceedings are alleged to be used to harass, intimidate, financially exhaust or otherwise discourage such participation. SLAPPs are commonly associated with defamation and libel proceedings, but the phenomenon is not restricted to defamation. Proceedings involving privacy, data protection, environmental issues and other legal claims may also be used in ways that generate similar concerns. The central issue, therefore, is not simply whether a claimant has a legal cause of action. It is whether the legal process is being used legitimately to vindicate a right or whether it is being deployed in a manner that creates an improper burden on public participation. This distinction is important because not every unsuccessful defamation claim is a SLAPP, and not every large damages claim is necessarily abusive. Individuals and organisations have legitimate interests in protecting their reputation and seeking legal remedies where defamatory statements have been published against them. The concern arises where litigation is used as a mechanism to suppress legitimate participation in public affairs.

UNDERSTANDING STRATEGIC LAWSUITS AGAINST PUBLIC PARTICIPATION

1. Meaning of SLAPP

SLAPP is an acronym for Strategic Lawsuit Against Public Participation. The term is generally used to describe litigation intended, or alleged to be intended, to burden persons who have engaged in public participation. The target may be a journalist, activist, civil-society organisation, researcher, whistleblower, environmental campaigner or ordinary citizen.The distinguishing feature is the relationship between the litigation and the defendant’s participation in a matter of public interest. A SLAPP may therefore arise where a person publishes an investigation into alleged wrongdoing and is subsequently subjected to expensive litigation that creates significant financial and procedural pressure. The objective in such circumstances may not necessarily be the ultimate success of the claim. The litigation itself may create sufficient pressure to cause the defendant to withdraw the publication, abandon an investigation or refrain from future criticism.

2. SLAPPs and Defamation

Defamation is one of the areas most frequently associated with SLAPP litigation. This is understandable because defamation law provides individuals with legal remedies where publications unlawfully damage their reputation. However, the existence of a defamation claim does not automatically make the proceedings a SLAPP. The law must preserve a person’s legitimate right to protect reputation. At the same time, the legal system must recognise that defamation proceedings can potentially be misused to impose disproportionate burdens on journalists and other participants in public debate. The proper focus should therefore be on the circumstances surrounding the proceedings, including the nature of the publication, the public-interest character of the subject matter, the conduct of the claimant, the remedies sought and the burden imposed on the defendant.

THE LEGAL FRAMEWORK FOR FREEDOM OF EXPRESSION IN NIGERIA

Freedom of expression is constitutionally protected in Nigeria. Section 39(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) provides that every person is entitled to freedom of expression, including the freedom to hold opinions and to receive and impart ideas and information without interference.[1] The right is not absolute. The Constitution itself recognises circumstances in which restrictions may lawfully be imposed. Consequently, freedom of expression must be considered alongside other legitimate interests protected by law, including reputation, privacy, public order and the administration of justice. At the regional level, Article 9 of the African Charter on Human and Peoples’ Rights recognises the right of every individual to receive information and to express and disseminate opinions within the law.[2] The African Commission on Human and Peoples’ Rights has also recognised freedom of expression as an essential component of democratic society and has developed principles concerning freedom of expression and access to information in Africa.[3] The legal framework therefore reflects an important balance. Freedom of expression deserves protection, but the exercise of that freedom does not remove the legitimate rights of others. The challenge posed by SLAPPs is determining when the pursuit of a legal remedy crosses the line from legitimate enforcement of rights into abusive use of legal process.

PUBLIC PARTICIPATION AND THE IMPORTANCE OF FREEDOM OF EXPRESSION

Public participation is an essential component of democratic governance. Journalists investigate matters of public interest. Civil-society organisations monitor government and public institutions. Activists advocate for reforms. Researchers publish findings. Whistleblowers disclose information concerning alleged wrongdoing. Citizens criticise policies and demand accountability. These activities frequently involve criticism of persons or institutions with greater financial or institutional resources than the individuals making the criticism. A healthy democratic society must therefore provide sufficient space for legitimate criticism and investigation. This does not mean that every allegation made in the public space should be protected from legal consequences. False statements capable of damaging reputation may attract liability where the legal requirements for such liability are established. The issue is one of balance.The law should provide a remedy where a genuine legal wrong has occurred without permitting the litigation process itself to become a means of discouraging legitimate public participation.

CHARACTERISTICS OF SLAPP LITIGATION

Although there is no single universal formula for identifying every SLAPP, certain characteristics frequently arise.

1. A Matter of Public Interest

SLAPP proceedings generally arise from conduct involving public participation. This may include investigative journalism, criticism of public officials, environmental campaigns, anti-corruption advocacy or discussion of matters affecting a significant section of society.

2. Disproportionate Financial Claims

A significant financial demand may create substantial pressure on a defendant. For a large corporation, a prolonged lawsuit may be manageable. For an individual journalist or small media organisation, however, legal fees and related expenses may threaten its ability to continue operating. The amount claimed is not by itself proof of a SLAPP. It becomes relevant when considered alongside the other circumstances of the case.

3. Procedural and Time Burdens

Litigation requires time and resources. A defendant may have to retain counsel, prepare documents, attend court, respond to applications and continue defending the case over an extended period. For a journalist, this may mean spending time in court instead of conducting investigations. For a civil-society organisation, resources that would ordinarily fund advocacy or community programmes may instead be directed towards litigation.

4. Power Imbalance

SLAPP concerns often arise where there is a substantial disparity between the resources available to the claimant and defendant. A wealthy individual or corporation may be capable of sustaining litigation for years, while the target may have limited financial resources. The formal equality of parties before a court does not necessarily eliminate the practical inequality created by the cost of litigation.

5. Chilling or cold Effect

Perhaps the most significant concern is the potential chilling effect. A journalist who has previously faced an expensive lawsuit may begin to reconsider whether another investigation is worth the potential legal consequences. An activist may decide not to publish a report. An NGO may avoid criticising a powerful institution. The result may be a reduction in legitimate public participation, even where the defendant has a lawful basis for speaking or publishing.

SLAPPS AND THE ABUSE OF THE LEGAL PROCESS

The concept of SLAPPs is closely connected to the broader principle that legal procedures should not be abused. Courts are established to determine genuine disputes and administer justice. Litigation should therefore not be transformed into an instrument for harassment or oppression. The challenge, however, is that an allegation that a lawsuit is a SLAPP does not automatically establish that it is abusive. The court must examine the facts and circumstances of the particular case. This is especially important in defamation proceedings because a claimant may genuinely suffer reputational damage as a result of a publication and may legitimately seek judicial relief. Consequently, anti-SLAPP mechanisms should not prevent genuine claimants from accessing justice. Rather, they should provide safeguards against proceedings that satisfy legally established criteria for abusive or manifestly unfounded litigation.

SELECTED NIGERIAN EXAMPLES

1. Agba Jalingo and the ECOWAS Community Court of Justice

The case involving journalist and publisher Agba Jalingo has become an important part of Nigeria’s broader freedom-of-expression discourse. Jalingo was arrested in 2019 following publications concerning alleged corruption involving the Cross River State Microfinance Bank. He was subsequently prosecuted on criminal charges, and the proceedings continued for an extended period before the prosecution was discontinued and he was discharged and acquitted. The matter was later considered by the ECOWAS Community Court of Justice in SERAP v Federal Republic of Nigeria (Agba Jalingo). The ECOWAS Court found violations concerning Jalingo’s right to liberty and dignity and awarded ₦30 million in compensation. However, the Court dismissed the claim concerning violation of his freedom of expression for insufficient evidence.[4] This distinction is legally important.

The case may be discussed in the context of concerns surrounding freedom of expression and legal harassment, but the judicial finding should not be expanded beyond what the Court actually decided. It demonstrates the importance of distinguishing between advocacy organisations’ characterisation of conduct and formal judicial findings.

2. SERAP and the DSS Officials’ Defamation Action

Another contemporary Nigerian example is the defamation action involving the Socio-Economic Rights and Accountability Project (SERAP) and two officials of the Department of State Services. The suit arose from publications made by SERAP in September 2024 concerning an alleged visit by DSS officials to SERAP’s Abuja office. On 5 May 2026, the Federal Capital Territory High Court ordered SERAP to pay ₦100 million in damages to the two officials. The Court also ordered public apologies, awarded ₦1 million as litigation costs and imposed 10 per cent annual post-judgment interest.[5] SERAP subsequently appealed the judgment and sought a stay of execution.[6] SERAP has characterised the proceedings as a SLAPP and argued that the judgment has implications for civic space. The DSS, however, stated that the action was brought by the two officials in their personal capacities rather than by the agency.[7] The case illustrates an important principle in SLAPP analysis: a party’s description of litigation as a SLAPP is not itself a judicial determination that the proceedings constitute a SLAPP. The final legal position must ultimately depend on the applicable law and the decisions of the appellate courts.

3. WikkiTimes and High-Value Defamation Claims

Investigative media organisation WikkiTimes has also reported facing several high-value legal claims following investigative publications. One notable example concerns a ₦2 billion libel action brought by former Speaker of the House of Representatives, Yakubu Dogara, following a publication concerning a constituency school project.[8] The case has been discussed by media-rights organisations in the context of SLAPP concerns. The significance of such litigation lies not merely in whether the claimant ultimately succeeds. The financial and procedural implications of defending high-value claims may themselves affect the capacity of smaller media organisations to conduct investigative journalism. Nevertheless, as with other examples, the classification of a particular lawsuit as a SLAPP must be distinguished from a final judicial determination on the merits or character of the proceedings.

THE DAPHNE CARUANA GALIZIA EXPERIENCE

The SLAPP debate is not unique to Nigeria. One of the most prominent international examples is the experience of Maltese investigative journalist Daphne Caruana Galizia. At the time of her assassination in 2017, the Daphne Caruana Galizia Foundation records that she was facing 43 civil and five criminal libel cases.[9] The sheer number of proceedings illustrates how litigation can become a significant burden on an individual journalist. The case has subsequently become an important reference point in international discussions concerning abusive litigation and the protection of investigative journalism. The lesson is not that every defamation claim brought against a journalist is abusive. Rather, it demonstrates the need to consider the cumulative effect of repeated proceedings, financial burdens and procedural pressure on the ability of journalists and other public-interest actors to continue their work.

THE CONSEQUENCES OF SLAPP LITIGATION

1. Financial Consequences

Litigation is expensive. Legal fees, filing expenses, transportation, documentation and other associated costs may place significant financial pressure on defendants. For small organisations and individuals, the financial consequences may be particularly severe.

2. Loss of Time

Time spent defending litigation is time that could have been devoted to journalism, research, advocacy or organisational activities. A case that continues for several years may therefore affect not only the defendant but also the public who depend on the defendant’s work.

3. Psychological and Professional Pressure

Prolonged litigation may create uncertainty and professional anxiety. A journalist may begin to consider the possibility of another lawsuit before publishing an investigation. An NGO may reconsider whether to issue a critical statement. The possibility of legal consequences may therefore influence conduct even where the underlying publication or activity is legitimate.

4. Chilling Effect on Public Debate

The ultimate concern is the possibility that litigation may discourage public participation. Where citizens become afraid to question public institutions or journalists become reluctant to investigate powerful actors, important information may never enter public discourse. The result can be reduced accountability and a narrower civic space.

THE ABSENCE OF A COMPREHENSIVE ANTI-SLAPP FRAMEWORK IN NIGERIA

Nigeria presently does not have a single comprehensive statutory framework specifically dedicated to SLAPPs. This does not mean that Nigerian courts are without procedural tools for addressing abusive litigation. Existing principles concerning abuse of court process, costs, striking out of incompetent processes and judicial case management may provide some protection depending on the facts and applicable procedural rules. However, these mechanisms do not constitute a dedicated anti-SLAPP regime. This has generated calls for legislative and institutional reforms. In May 2026, Hope Behind Bars Africa and other stakeholders called for stronger legal and institutional measures against SLAPPs in Nigeria, including reforms to existing laws and the development of dedicated anti-SLAPP legislation.[10] A comprehensive framework could provide clearer standards for identifying abusive litigation and more effective mechanisms for dealing with such proceedings at an early stage.

INTERNATIONAL APPROACHES TO ANTI-SLAPP PROTECTION

1. European Union

The European Union adopted Directive (EU) 2024/1069 concerning protection of persons who engage in public participation from manifestly unfounded claims or abusive court proceedings. The Directive provides procedural safeguards including early dismissal of manifestly unfounded claims, security for costs in appropriate circumstances and mechanisms for awarding costs against parties who bring abusive proceedings.[11] The EU approach demonstrates that protection against SLAPPs can be structured without completely eliminating legitimate access to courts.

2. United Kingdom

The United Kingdom has also developed specific measures concerning SLAPPs. The Economic Crime and Corporate Transparency Act 2023 introduced provisions requiring rules of court to address certain SLAPP claims involving public participation related to economic crime.[12] Under the statutory framework, a claimant must satisfy a prescribed threshold concerning the likelihood of success before certain SLAPP claims can proceed, while corresponding procedural and costs protections are provided.[13] The UK framework is narrower than a general anti-SLAPP regime because its statutory definition is connected to freedom of speech concerning economic crime. Nevertheless, it demonstrates how legislation can provide courts with mechanisms for dealing with potentially abusive litigation at an early stage.

THE NEED TO PROTECT BOTH REPUTATION AND PUBLIC PARTICIPATION

The debate surrounding SLAPPs should not be reduced to a conflict between freedom of expression and reputation. Both interests are legally important. An individual has a legitimate interest in protecting his or her reputation from false and defamatory statements. At the same time, society has an equally important interest in allowing journalists, researchers, activists and citizens to discuss matters of genuine public concern. A proper legal framework must therefore avoid two extremes. The first is to create a system in which individuals cannot protect their reputations through litigation. The second is to permit litigation to become so burdensome that people are discouraged from engaging in legitimate public participation. The objective should be to maintain access to justice while preventing abuse of the judicial process.

RESPONSIBLE JOURNALISM AS A COMPLEMENTARY SAFEGUARD

Anti-SLAPP protection should not be interpreted as immunity from legal responsibility. Journalists, activists and civil-society organisations must continue to observe professional and legal standards. Investigative publications should be supported by evidence. Allegations should be distinguished from established facts. Reasonable efforts should be made to verify information. Persons who are the subject of serious allegations should, where appropriate, be given an opportunity to respond. Records and source materials should be properly preserved.These practices not only improve the quality of journalism but may also assist a defendant in responding effectively to legitimate legal claims. Freedom of expression carries responsibilities. However, responsibility should not be converted into a requirement that citizens remain silent on matters of public importance.

RECOMMENDATIONS

1.Enactment of a Nigerian Anti-SLAPP Framework

Nigeria should consider the development of dedicated anti-SLAPP legislation or comprehensive procedural rules. Such a framework should clearly define the circumstances in which litigation may qualify for anti-SLAPP protection while preserving access to courts for genuine claims.

2. Early Dismissal Mechanism

Courts should have an effective mechanism for determining, at an early stage, whether proceedings are manifestly unfounded or abusive. An early-determination procedure can prevent defendants from spending years defending proceedings that should not have continued. The EU framework provides a useful comparative example in this regard.[14]

3. Appropriate Costs Protection

Where litigation is judicially determined to be abusive, the defendant should be able to obtain appropriate costs protection. This would reduce the incentive to use financial pressure as a litigation strategy.

4. Stronger Judicial Case Management

Courts should make effective use of existing procedural powers to prevent unnecessary delay, excessive interlocutory applications and other practices capable of imposing disproportionate burdens on litigants. Judicial case management is particularly important where the subject matter involves public participation and the proceedings are capable of producing a significant chilling effect.

5. Legal Support for Journalists and Civil-Society Organisations

There should be stronger institutional support for journalists, whistleblowers, activists and civil-society organisations facing complex litigation. Professional legal networks, pro bono schemes, legal defence funds and specialist media-law support can improve access to effective representation.

6. Training for Lawyers and Judges

Lawyers and judges should receive greater education on SLAPPs, abuse of process, freedom of expression and the relationship between litigation and public participation. Such training would assist the justice system in identifying problematic litigation without undermining legitimate claims.

7. Strengthening Responsible Journalism

Media organisations should strengthen internal legal and editorial review systems. Proper fact-checking, source verification, documentation and fair reporting can reduce legitimate exposure to defamation liability while strengthening public confidence in investigative journalism.

CONCLUSION

The law is designed to protect rights and provide remedies for wrongs. Yet the legal process itself can become burdensome where litigation is used in a manner that intimidates, exhausts or discourages legitimate public participation. This is the central concern raised by Strategic Lawsuits Against Public Participation. Nigeria’s constitutional protection of freedom of expression provides an important foundation for public participation. However, constitutional protection alone may not address every procedural and financial burden created by prolonged litigation. The Nigerian experience demonstrates the importance of examining not only the final judgment in a case but also the consequences of the litigation process itself. The cases involving Agba Jalingo, SERAP and WikkiTimes illustrate different dimensions of the broader debate, although the legal characterisation of individual proceedings must always be distinguished from judicial findings. The objective of anti-SLAPP protection should therefore not be to prevent people from protecting their reputations or legitimate legal interests. Rather, it should be to ensure that the machinery of justice is not itself transformed into an instrument for suppressing lawful public participation. A strong legal system must be capable of doing two things at the same time: providing remedies for genuine wrongs and protecting the space necessary for citizens to question, investigate, criticise and participate in society. The challenge is finding the appropriate balance. That balance is not only a question of legal procedure. It is ultimately a question of what society expects from the rule of law.

FOOTNOTES

1. Constitution of the Federal Republic of Nigeria 1999 (as amended), s 39(1).
2. African Charter on Human and Peoples’ Rights, art 9.
3. African Commission on Human and Peoples’ Rights, Declaration of Principles on Freedom of Expression and Access to Information in Africa (2019).
4. SERAP v Federal Republic of Nigeria (Agba Jalingo), ECW/CCJ/JUD/06/21, Judgment of the ECOWAS Community Court of Justice, 9 July 2021.
5. Sarah John & Gabriel Ogundele v Socio-Economic Rights and Accountability Project (SERAP), Suit No FCT/HC/CV/4547/24, High Court of the Federal Capital Territory, Abuja, Judgment delivered 5 May 2026.
6. SERAP subsequently filed a Notice of Appeal and sought a stay of execution of the judgment.
7. TheCable, ‘DSS: We didn’t file defamation suit against SERAP — operatives sued in personal capacity’ (6 May 2026).
8. Yakubu Dogara v WikkiTimes, Suit No BA/332/2021, Bauchi State High Court. See also WikkiTimes, reports concerning the action and the ₦2 billion damages claimed.
9. Daphne Caruana Galizia Foundation, ‘Defence against frivolous and vexatious libel suits’.
10. Hope Behind Bars Africa, stakeholder discussions and research on SLAPPs in Nigeria, reported in May 2026.
11. 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’).
12. Economic Crime and Corporate Transparency Act 2023, ss 194–195.
13. Economic Crime and Corporate Transparency Act 2023, explanatory provisions concerning the early dismissal of qualifying SLAPP claims.
14. Directive (EU) 2024/1069, arts 10–15.

Author:

Job Joseph, DL, LL.B(Hons), ABU Zaria.