On Friday 9 December, EU Ministers of Justice discussed the progress of negotiations on the proposed directive to combat SLAPPs (see EUROPE 13037/21). Meeting in a formal session in Brussels, they discussed, among other things, ways to ensure a balance between protection of SLAPP targets and access to justice.
A difficult balance
In fact, all Member States have stressed the importance of ensuring the right of access to justice. “We have to avoid extremists using SLAPPs as a way to reject pursuit of legitimate claims”, said Germany. “Such a legislative act should never work against people who have reasonable claims such as those facing hatred spreads on the Internet”.
Some have put forward solutions that have been proven at national level. Belgium, for example, believes that capping the legal costs to be paid by the person who loses a case does not deter a plaintiff from going to court. Lithuania, on the other hand, has suggested the following “allow the suspension for an action at an early stage [while] not precluding the possibility of reapplying to the court once the action has been revised [allows] a balance between rights”.
Early dismissals of SLAPPs
However, the possibility of quickly dismissing “obviously” abusive procedures has been a major concern for ministers. “Regarding early dismissal we should avoid creating an instrument that hinders the right to a fair trial”, Hungary warned.
Slovenia stressed that not all European countries have the same interpretation of “early dismissal”. In the same vein, Poland and France argued that it should be up to the Member States, and therefore to national courts and legislation, to determine whether a complaint can qualify for early dismissal. Instead, Bulgaria, Germany, Croatia, Slovakia and Luxembourg have insisted on the need for a judge to be able to examine “the case in detail before dismissing it as manifestly unfounded”.
In the minority, others, including Lithuania, argued that “such abusive proceedings should be stopped as early as possible”.
Scope
Finally, the ministers discussed the scope of the directive. Poland and Hungary insisted that it should be limited to “cross-border cases” and should not therefore concern cases where both parties are resident in the same country. Slovenia, Croatia and Poland welcomed the agreement between Member States to exclude those who disseminate false information from the directive.
France noted that a major part of French SLAPP proceedings are “criminal defamation proceedings and do not therefore fall within the scope of this Directive”.
Discussions are likely to be lengthy
With the exception of Estonia and Finland, who are not very enthusiastic about the idea of European legislation on the subject, Member States have made it clear that they are in favour of the directive but that they want to have the time to “balance it”.
European Commission Vice-President Věra Jourová said she understood the concerns of Member States, but asked them to “remain ambitious and not to vote against the main features of the proposal”, while expressing the hope that a first political agreement would be reached under the Swedish Presidency of the EU Council. (Original version in French by Hélène Seynaeve)