Unveiled on Wednesday 27 April by the European Commission, the proposal for a directive to combat strategic lawsuits against public participation (SLAPPs), which journalists, human rights, and environmental defenders may face, is limited in scope to civil court cases with a cross-border dimension.
“This is the first time” that the EU institution is proposing legislation to protect and strengthen the rights of these democratic and civil society actors against powerful interests that are trying to “silence them by abusive lawsuits”, said European Commission Vice-President Věra Jourová, for whom this legislative proposal responds to “a moral obligation” and to a promise made to the family of Daphne Caruana Galizia, a Maltese journalist who was murdered in October 2017 for having denounced corruption in her country.
She admitted that she would have liked to extend the scope of the proposal, but the European Commission had to stay within its competences. The EU has no power to legislate on strictly national cases or those that fall under criminal law.
According to the legislation, to be considered cross-border, a civil court case will have to involve two parties established in different Member States.
A case involving two parties established in the same Member State may nevertheless be considered cross-border if the case concerns issues of general interest - public health, protection of the environment, protection of fundamental rights, fight against disinformation, fight against corruption and crime, action by a public entity - which affect more than one Member State or are the subject of legal proceedings in more than one EU country.
In order to make litigation less attractive, the proposed Directive will allow national courts to identify and dismiss manifestly unfounded claims quickly. In such a case, the burden of proof will be on the applicant to show that the proceedings are not unfounded.
The claimant will also be required to bear all legal costs, including the defendant’s legal fees, if proceedings are dismissed as abusive. He or she may be sanctioned for doing so, and the target of a SLAPP suit may seek compensation for the damage suffered.
Member States should also refuse to recognise a court decision given in a third country - Mrs Jourová mentioned the “United Kingdom” - against a person domiciled in a Member State, if it is found that the proceedings are unfounded or abusive under their law.
Recommendation. In order for Member States to tackle in parallel SLAPPs related to cases of purely national competence, the European Commission has presented a recommendation, which is already applicable.
We call on them to ensure that their defamation laws prevent misuse, and we encourage those countries that still provide for it to “abolish prison sentences for defamation”, said the European Commission Vice-President.
The recommendation also aims to raise awareness, stimulate expertise and collect accurate data on this growing phenomenon.
According to Mrs Jourová, Denmark already has robust national rules against SLAPPs, and “Lithuania, Malta and Ireland” are taking action in this area.
Co-author with Tiemo Wölken (S&D, Germany) of a specific own-initiative report prior to her election to the European Parliament (see EUROPE 12830/17), Roberta Metsola pledged that work in the Parliament would push forward this issue to “stop” SLAPPs. “The courts cannot be a playground used by the rich and powerful to silence their critics”, said Mr Wölken.
According to Reporters Without Borders (RSF), the measures on the table constitute “an important first step”, notably by introducing “procedural safeguards combining preventive and punitive measures”. However, the proposed directive remains “limited to cases with a cross-border impact, which significantly restricts its scope”, said RSF’s representative to the EU, Julie Majerczak, in a statement.
In Poland, the Polish daily Gazeta Wyborcza has received more than 55 threats of legal action since 2015, including from the ruling party, according to RSF. According to the organisation, French businessman Vincent Bolloré “almost systematically sues journalists who investigate and question his activities, on grounds such as defamation, commercial denigration or harassment”.
Transparency International EU welcomed the European Commission’s proposal, which “will put an end to vexatious cross-border litigation used to silence individuals and organisations that hold those in power to account”. Greenpeace International welcomed “decisive steps to tackle the growing problem of legal intimidation in Europe to silence journalists and activists”.
Finally, Mrs Jourová recalled that the European Commission would present in the autumn the Media Freedom Act to strengthen media independence and pluralism (see EUROPE 12865/25).
See the proposals for a directive: https://aeur.eu/f/1dv; and a recommendation on SLAPPs: https://aeur.eu/f/1dw (Original version in French by Mathieu Bion with Lionel Changeur)