On 27 April 2022, the Vice President of the EU Commission, Věra Jourová, presented a Directive proposal to protect journalists and human rights defenders against abusive intimidation lawsuits, so-called “SLAPPs“.
“The draft proposal has long been overdue – it is high time to stop the silencing of journalists!” was SPÖ MEP Bettina Vollath’s reaction to the Commission proposal. SLAPP stands for “Strategic Lawsuits against Public Participation”. Such lawsuits are abusive court proceedings against journalists and human rights defenders, who are to be intimidated by lengthy, cost intensive court proceedings. This also affected Maltese journalist Daphne Caruana Galizia, who garnered many enemies by investigating corruption in the government and business world. She was the subject of 46 civil and criminal defamation suits filed by a number of businessmen and politicians, before she was killed when a car bomb was detonated inside her vehicle on 16 October 2017. In view of SLAPP lawsuits, the EU Parliament had already in November 2021 demanded new EU Regulations with an overwhelming majority.
Content of the Commission’s Directive proposal
In September 2021, the Commission for the first time proposed a Recommendation to Member States on the safety of journalists. The now presented Directive proposal covers SLAPPs in civil matters and focusses on cases with “cross-border implications”. Its core objective is to enable courts to dismiss apparent abusive lawsuits against journalists and human rights defenders at an early state and to stop court proceedings if a case is clearly unfounded. If a lawsuit is dismissed as abusive, claimants shall in future bear all procedural costs including the defendant’s lawyer’s fees. In addition, the targets of a SLAPP lawsuit will have a right to claim and obtain full compensation for the material and immaterial damage. To prevent claimants from starting abusive court proceedings, the courts shall be able to impose dissuasive sanctions. This shall deter companies, government representatives and powerful individuals from bringing critics to court on the basis of unfounded allegations. Finally, Member State courts shall also be able to refuse recognition of third-country judgments if the proceedings were found to be manifestly unfounded or abusive under the Member State's law.
Supplementary Recommendations to the Member States
Recommendations to Member States were published in addition to the proposed Directive. According to these Recommendations, Member States are to ensure that their respective national defamation rules do not have any unjustified impact on the right to freedom of expression, an open, free and pluralistic media landscape as well as public participation. Legal professionals and potential targets of SLAPPs shall be trained to improve their knowledge and skills to effectively deal with these court proceedings. Apart from awareness and information campaigns, targets shall also receive independent support, among other from law firms, which defend them free of charge.
The Coalition Against SLAPPs in Europe (CASE), which had presented a Model Directive beforehand, welcomes the draft proposal as a first important step against intimidation lawsuits. However, the Munich Environmental Institute criticises that the EU Directive should only apply to cross-border SLAPP cases. However, the majority of cases would take place within Member States. Apart from that, the EU Directive would only be effective in civil law proceedings and therefore not in the current case of criminal charges brought against an employee of the Munich Environmental Institute. According to Věra Jourová, Commissioner in charge of Values and Transparency, three countries – Ireland, Malta and Lithuania – have already started to check the introduction of national legislation on SLAPPs. The Directive proposal must now be negotiated by European Parliament and Council. Poland, Hungary and Rumania, who have come under increased criticism in recent years because of their media freedom and division of powers, would also have to approve of the Commission’s proposal.