On Thursday 11 November, the European Parliament will vote on an own-initiative report on the fight against “SLAPPs”: legal actions often brought against journalists or activists with the sole aim of intimidating or silencing them. When MEPs started working on this report last July, the main objective was to keep the pressure on the European Commission to come up with a legislative proposal (see EUROPE 12753/19). In the meantime, the European Commission has confirmed that it will present a draft directive and recommendations on the subject in 2022 (see EUROPE 12804/20). EUROPE took stock of MEPs’ expectations with Roberta Metsola (EPP, Malta), co-rapporteur on this dossier. (Interview by Agathe Cherki)
Agence Europe - The European Parliament’s first calls urging the European Commission to propose an “EU anti-SLAPP directive” date back to January 2018. What justifies this need, which the European Commission has finally understood, to intervene at European level?
Roberta Metsola - There is a big gap at the national level regarding the protection of victims of SLAPPs. The murders of Daphne Caruana Galizia in Malta and of Ján Kuciak and his fiancée Martina Kušnírová in Slovakia were real wake-up calls for this Parliament. Nearly fifty lawsuits, many of which fall into the category of SLAPPs, had been filed against Daphne Caruana Galizia. Her children have inherited them; they are now fighting them and are under enormous financial pressure.
So journalists in the Union investigate corruption, politicians who do not respect the Rule of law, criminal organisations, but they do so sometimes at the risk of their lives and without any protection in the course of their work.
Throughout the preparation of our report, we have also noted that the situation is getting worse. And this is happening in more and more countries, including those with strong checks and balances, where institutions function very well. Even in these countries, we have met journalists and organisations who assure us that the situation is getting worse.
What do MEPs absolutely want to see in the draft directive promised by the European Commission?
The first thing we are asking for is a proper definition of what is meant by SLAPP. We talk about “strategic lawsuits against public participation”, but what does this mean? How vexatious, unfair and repetitive does a lawsuit have to be to be considered a SLAPP? Because we have to be careful to strike a balance between what constitutes an abusive procedure and a legitimate recourse to justice.
Secondly, we have seen an increase in cross-border SLAPP cases, with plaintiffs engaging in what is known as “forum shopping”: they identify which jurisdiction, in which country, might be more favourable to them than another. In the US, Canada, and Australia, good measures already exist to avoid this, but not in the EU. This should be remedied.
We are also waiting for non-binding measures to address important problems such as the lack of training of our judges and lawyers and the lack of funds to support victims of SLAPPs. Measures in this regard have been supported and used in other areas. They should also be mobilised here.
A study on SLAPPs commissioned by the European Commission from the academic network EU-CITZEN, stated that a measure such as the reversal of the burden of proof - once envisaged by the Parliament - might not “survive constitutional scrutiny in all Member States”. Are you concerned that the plan to introduce common anti-SLAPP measures will ultimately be hampered by national legal obstacles?
The legal experts are currently being consulted. We have also been in contact with legal experts across the EU, in different universities, in order to identify the best possible measures. Because, of course, we have to be both ambitious and legally realistic: to understand that the EU27 structures work differently, the way the courts are organised in civil and criminal law, to distinguish between national and cross-border cases. We do not want instruments that would then be rejected by these courts.
As a lawyer, I am pleased that the European Commission is currently examining all potential obstacles. As a politician, however, what I would say to this question is that I would not like to see the institutions use possible legal obstacles to disguise a lack of political will.
You talk about “very, very good cooperation” between the political groups in Parliament on this issue. Do you think you can count on good cooperation from the Member States as well?
As always, you will have Member States that will be enthusiastic, Member States that will say that we already have mechanisms in place, Member States that will be absolutely uncooperative.
But the Parliament, for its part, is taking a strong position. We have MEPs from all countries telling national governments: “Now you have to do something about it”. Our position is extremely clear, and governments must understand that. Of course, we will rely on the results that the rotating Presidencies of the EU Council manage to achieve, but we will keep up the pressure.
The European Commission’s proposal is expected in the second quarter of 2022. France will then hold the Presidency of the EU Council. Do you think you can count on Paris to launch and advance the work on this text?
I have had very good conversations with the incoming French Presidency so far. We have a lot of expectations, and this will certainly be one of our demands.
See the report to be voted on Thursday: https://bit.ly/3CXsWjz