commission tackles abusive lawsuits against

Today, the European Commission https://www.opendemocracy.net is tak­ing action to improve pro­tec­tion of jour­nal­ists and human rights defend­ers from abu­sive court pro­ceed­ings. Strategic law­suits against pub­lic par­tic­i­pa­tion, com­mon­ly known as ‘SLAPPs’, are a par­tic­u­lar form of harass­ment used pri­mar­i­ly against jour­nal­ists and human rights defend­ers to pre­vent or penalise speak­ing up on issues of pub­lic interest. 

The pro­posed Directive cov­ers SLAPPs in civ­il mat­ters with cross-bor­der impli­ca­tions. It enables judges to swift­ly dis­miss man­i­fest­ly unfound­ed law­suits against jour­nal­ists and human rights defend­ers. It also estab­lish­es sev­er­al pro­ce­dur­al safe­guards and reme­dies, such as com­pen­sa­tion for dam­ages, and dis­sua­sive penal­ties for launch­ing abu­sive law­suits. The Commission is also adopt­ing a com­ple­men­tary Recommendation to encour­age Member States to align their rules with the pro­posed EU law also for domes­tic cas­es and in all pro­ceed­ings, not only civ­il mat­ters. The Recommendation also calls on Member States to take a range of oth­er mea­sures, such as train­ing and aware­ness rais­ing, to fight against SLAPPs.

Vice-President for Values and Transparency, Věra Jourová said: “We promised to defend bet­ter jour­nal­ists and human rights defend­ers against those that try to silence them. The new law does that. In a democ­ra­cy, wealth and pow­er can­not give any­one an advan­tage over truth. With these mea­sures we are  help­ing to pro­tect those who take risks and speak up when the pub­lic inter­est is at stake – when they report for exam­ple on alle­ga­tions of mon­ey laun­der­ing and cor­rup­tion, envi­ron­men­tal and cli­mate mat­ters or oth­er issues that are impor­tant to us all.”

Commissioner for Justice, Didier Reynders, said: “The active exer­cise of the fun­da­men­tal right to free­dom of expres­sion and infor­ma­tion is key for a healthy and thriv­ing democ­ra­cy. The EU will always pro­tect that right. Today, we are tak­ing impor­tant steps to safe­guard jour­nal­ists and civ­il soci­ety who are increas­ing­ly under threat from SLAPPs. SLAPPs delay or even pre­vent the pub­li­ca­tion of state­ments of pub­lic inter­est SLAPPs also put an unnec­es­sary bur­den on courts. We are now pro­vid­ing instru­ments to keep that abu­sive prac­tice in check.”

Proposal for an EU law against SLAPPs

The pro­posed Directive pro­vides courts and tar­gets of SLAPPs with the tools to fight back against man­i­fest­ly unfound­ed or abu­sive court pro­ceed­ings. The pro­posed safe­guards will apply in civ­il mat­ters with cross-bor­der impli­ca­tions. The safe­guards are expect­ed to ben­e­fit in par­tic­u­lar jour­nal­ists and per­sons or organ­i­sa­tions engaged in defend­ing fun­da­men­tal rights and a vari­ety of oth­er rights, such as envi­ron­men­tal and cli­mate rights, wom­en’s rights, LGBTIQ rights, the rights of the peo­ple with a minor­i­ty racial or eth­nic back­ground, labour rights or reli­gious free­doms, but all per­sons engaged in pub­lic par­tic­i­pa­tion on mat­ters of pub­lic inter­est are cov­ered. The safe­guards have been tar­get­ed to ensure the bal­ance of access to jus­tice and pri­va­cy rights with the pro­tec­tion of free­dom of expres­sion and infor­ma­tion. The main ele­ments of the pro­pos­al are:

Early dis­missal of a man­i­fest­ly unfound­ed court pro­ceed­ings – courts will be able to take an ear­ly deci­sion to dis­miss the pro­ceed­ings if a case is man­i­fest­ly unfound­ed. In such a sit­u­a­tion, the bur­den of proof will be on the claimant to prove that the case is not man­i­fest­ly unfounded;Procedural costs – it will be for the claimant to bear all the costs, includ­ing the defen­dan­t’s lawyers’ fees, if a case is dis­missed as abusive;Compensation of dam­ages – the tar­get of SLAPP will have a right to claim and obtain full com­pen­sa­tion for the mate­r­i­al and imma­te­r­i­al damage;Dissuasive penal­ties – to pre­vent claimants from start­ing abu­sive court pro­ceed­ings, the courts will be able to impose dis­sua­sive penal­ties on those who bring such cas­es to the court.Protection against third-coun­try judge­ments – Member States should refuse recog­ni­tion of a judg­ment com­ing from a non-EU coun­try, against a per­son domi­ciled in a Member State, if the pro­ceed­ings would be found to be man­i­fest­ly unfound­ed or abu­sive under the Member State’s law. The tar­get will also be able to ask for com­pen­sa­tion of the dam­ages and the costs in a Member State where he or she is domi­ciled in.

Recommendation for Member States 

The Commission Recommendation also adopt­ed today com­ple­ments the Directive and encour­ages Member States to ensure that:

National legal frame­works pro­vide the nec­es­sary safe­guards, sim­i­lar to those at EU lev­el, to address domes­tic cas­es of SLAPPs. This includes ensur­ing the pro­ce­dur­al safe­guards of an ear­ly dis­missal of man­i­fest­ly unfound­ed court pro­ceed­ings. Member States would also need to ensure that their rules applic­a­ble to defama­tion, which is one of the most com­mon grounds for launch­ing SLAPPs, do not have an unjus­ti­fied impact on the free­dom of expres­sion, on the exis­tence of an open, free and plur­al media envi­ron­ment, and on pub­lic participation.Training is avail­able for legal pro­fes­sion­als and poten­tial SLAPP tar­gets to improve their knowl­edge and skills to effec­tive­ly deal with these court pro­ceed­ings. The European Judicial Training Network (EJTN) will be involved to ensure coor­di­na­tion and that infor­ma­tion is dis­sem­i­nat­ed in all Member States;Awareness rais­ing and infor­ma­tion cam­paigns are organ­ised, so that jour­nal­ists and human rights defend­ers do rec­og­nize when they are fac­ing a SLAPP;Targets of SLAPP have access to indi­vid­ual and inde­pen­dent sup­port, such as from law firms that defend SLAPP tar­gets pro bono;Aggregated data col­lect­ed at nation­al lev­el on man­i­fest­ly unfound­ed or abu­sive court pro­ceed­ings against pub­lic par­tic­i­pa­tion is report­ed to the Commission on a year­ly basis, start­ing as of 2023.

Next Steps

The pro­posed Directive will have to be nego­ti­at­ed and adopt­ed by the European Parliament and the Council before it can become EU law.

The Commission Recommendation is direct­ly applic­a­ble. Member States will need to report on imple­men­ta­tion to the Commission 18 months after adop­tion of the Recommendation.

Background

The European Democracy Action Plan, adopt­ed in December 2020, announced a series of ini­tia­tives to sup­port and safe­guard media free­dom and plu­ral­ism. In this con­text, the Commission pre­sent­ed in September 2021 its first-ever Recommendation to Member States on the safe­ty of jour­nal­ists. Another step is made today with  mea­sures to pro­tect jour­nal­ists and civ­il soci­ety organ­i­sa­tions against abu­sive lit­i­ga­tion. The use of SLAPPs is increas­ing in the EU, with tar­gets often fac­ing mul­ti­ple law­suits simul­ta­ne­ous­ly and in mul­ti­ple juris­dic­tions. Such court pro­ceed­ings have a neg­a­tive impact on the will­ing­ness and abil­i­ty of jour­nal­ists and human rights defend­ers to con­tin­ue their work, and a chill­ing effect on free­dom of expres­sion, free­dom of infor­ma­tion and a plu­ral­is­tic pub­lic debate.

The preva­lence of SLAPP is a mat­ter of seri­ous con­cern in some Member States, as iden­ti­fied by the 2020 and 2021 Rule of Law Reports. In 2021, the Media Freedom Rapid Response (MFRR) doc­u­ment­ed 439 alerts (with 778 per­sons or enti­ties relat­ed to media being attacked) in 24 EU Member States, includ­ing SLAPPs. In more than 1 out of 5 of those inci­dents (22.1% – 97 alerts) media actors faced legal consequences.

Together with increas­ing threats to their phys­i­cal and online safe­ty, legal threats and abu­sive lit­i­ga­tion add to an envi­ron­ment where hos­tile activ­i­ty against jour­nal­ists is grow­ing and can have a seri­ous impact on their will­ing­ness and abil­i­ty to con­tin­ue their work. A trag­ic exam­ple of the use of SLAPP is the jour­nal­ist Daphne Caruana Galizia who was fac­ing more than 40 law­suits at the time of her assas­si­na­tion in 2017. The aim of SLAPPs law­suits is not to access jus­tice but to harass, intim­i­date and silence defen­dants with the length of pro­ce­dures, the finan­cial pres­sure and the threat of crim­i­nal sanc­tions. Journalists are not the only tar­gets; human rights defend­ers and civ­il soci­ety organ­i­sa­tions, espe­cial­ly those work­ing on human rights and the envi­ron­ment also face SLAPP.

As part of its efforts to pro­tect the inde­pen­dence and the plu­ral­ism of the media, and as announced by President von der Leyen in her 2021 State of the Union speech, the Commission will present the Media Freedom Act. This ini­tia­tive is expect­ed to be adopt­ed in the third quar­ter of this year.

For More Information

The Commission pro­pos­al for a Directive

The Commission Recommendation

Factsheet on Making EU democ­ra­cies stronger: Better pro­tec­tion for jour­nal­ists and human rights defenders

Coalition Against SLAPPs in Europe (CASE)

The Council of Europe Platform to Promote the Protection of Journalism and Safety of Journalists — 2022 Annual Report

Commission tack­les abu­sive law­suits against journalists

Original source of arti­cle: ec.europa.eu