The European Commission intends to combat SLAPPs (strategic lawsuits against public participation) by means of a directive and a recommendation.
The institution published a roadmap on Monday 4 October in which it talks about developing a “combination of legislative and non-legislative measures” to deal with this increasingly widespread form of harassment, of which journalists and rights defenders are the main victims.
“Typically, they are meritless lawsuits lodged by powerful individuals or entities (companies or state organs) against a weaker party who expresses a critical position on a matter of public interest. The main purpose is to intimidate and ultimately silence the defendant by draining their resources, e.g. by filing high claims for damages or deliberately lengthening proceedings”, the Commission details.
One of the most telling European examples is that of Maltese journalist Daphne Caruana Galizia, who was murdered while investigating corruption and money laundering. At the time of her death, the journalist was the target of 42 civil lawsuits and five criminal cases, Commission Vice-President Věra Jourová, who has been very involved in the case, said on Monday (see EUROPE 12689/22).
Ensuring convergence of national approaches
The Commission therefore plans to present a recommendation that would focus more on awareness-raising and training for professionals dealing with SLAPPs, but also on support and follow-up for victims.
And it intends to develop a draft directive to intervene against SLAPPs in cross-border situations.
Such a directive would be based on Article 81 TFEU, which allows the Union to develop judicial cooperation in civil matters with cross-border implications.
“Action at EU level would help to combat the emergence and growth of SLAPPs throughout the EU and ensure convergence in Member States’ approaches to the phenomenon”, the Commission insists, noting that the few safeguards that currently exist are limited and not specific to SLAPPs.
Through a directive, the Commission could, for example, introduce a motion allowing for the early dismissal of abusive lawsuits - a measure favoured by the European Parliament, which is currently preparing recommendations on the EU’s future anti-SLAPP arsenal (see EUROPE 12782/24).
MEPs should also call for provisions to reverse the burden of proof, so that it lies with the applicant.
In this regard, however, the European Commission notes in a study on SLAPPs that it will be necessary to examine to what extent “reversal of the burden of proof would survive constitutional scrutiny in all Member States”.
First discussions in the EU Council
The Commission should have the opportunity to test the water with the EU-27 as early as this week. EU justice ministers are expected to discuss the issue at a working lunch on Thursday in Luxembourg, an institutional source confirmed on Monday.
According to a working document sent to the delegations on 24 September, of which EUROPE has obtained a copy, the ministers will be invited to share the experiences and good practices identified in their countries in the fight against SLAPPs.
The Presidency will also ask them to answer the following question: “Do you see a European or cross-border dimension in SLAPP, and therefore added value in a European legislative initiative, in this area? Should such an initiative be legally binding or non binding or a combination of both?”
In autumn 2021, the European Commission will also organise a targeted consultation of national judges and two meetings with government experts and stakeholders.
Finally, its public consultations on the draft recommendation and directive will remain open until 10 January.
To consult them: https://bit.ly/3BmcUyE; https://bit.ly/3mpopPD
To consult the Commission’s study on SLAPPs: https://bit.ly/3a1B3ie (Original version in French by Agathe Cherki)