SPECIAL COLLECTION OF THE CASE LAW ON FREEDOM OF EXPRESSION civil defamation laws, slander and insult legislation, and public order laws. Importantly, in several cases under review, courts examined the legislation under which the SLAPP cases were initiated and noted that such legislation had to be amended. For instance: l l l 53 54 55 56 57 58 59 In Palacio Urrutia v. Ecuador, the Inter-American Court ordered to a) decriminalise criminal prohibitions of slander and insult against public officials under which SLAPP cases are initiated and b) establish alternative channels for the protection of the honour of public officials, including rectification and response, as well as civil law.53 The Inter-American Court highlighted that the use of criminal law to stifle criticism of public officials “would directly or indirectly constitute intimidation which, ultimately, would limit freedom of expression and would impede public scrutiny of unlawful conduct, such as acts of corruption, abuse of authority, etc.”54 It reiterated that “criminal prosecution is the most restrictive measure to freedom of expression, therefore its use in a democratic society must be exceptional and reserved for those eventualities in which it is strictly necessary to protect the fundamental legal interests from attacks that damage or endanger them, since to do otherwise would mean an abusive exercise of the punitive power of the State.”55 Importantly, the Court’s order to adopt legislative measures to fulfil the State’s obligation to prevent lawsuits brought by public officials aiming to silence criticism is set under a non-repetition approach, a system used by the Inter-American Court to ensure the problem is tackled through comprehensive legislative measures.56 Similarly, the European Court in OOO Memo v. Russia referred to the recommendation of the PACE Committee to Russia “to reform its defamation legislation to rescind additional defamation protection for public officials” and “to introduce a clear ban on public bodies to institute civil proceedings in order to protect their reputation.”57 The European Court also stressed that the protection of legal entities exercising public powers is not a legitimate aim for restricting freedom of expression under Article 10 para 2 of the European Convention of Human Rights.58 This means that civil defamation legislation should not protect public bodies exercising executive powers. The Western Cape High Court in Mineral Sands Resources (Pty) Ltd and Others v Reddell and Others noted that the interests of justice should not be compromised due to a lacuna or the lack of a legislative framework, as this could be exploited by corporates.59 It highlighted that this exploitation has a draining effect on the public purse and participation, and is caused by a process that renders civil society vulnerable when corporates pursue legal challenges and raise legal defences. It then stated that the legislature should be left with the choice as to whether a SLAPP defence should be introduced into South African Law Ibid. paras 96 in connection with para 103. Ibid., para 118. Ibid., para 117. Ibid., para 182. OOO Memo v. Russia, op. cit., para 22. Ibid., paras 47 and 49. Western Cape High Court Mineral Sands Resources (Pty) Ltd and Others v Reddell and Others, op.cit., para 65. 14