Proposal for a Directive on Protecting Persons Who Engage in Public Participation from SLAPPs

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 term was coined by Professors George W. Pring and Penelope Canan in their book SLAPPs: Getting Sued for Speaking Out (Temple University Press, 1996).

The phenomenon is now well known everywhere, but anti-SLAPP legislation has so far only been enacted in a few countries, such as Australia or Canada. In the Europe Union, action was not officially taken until the assassination of Maltese journalist Daphne Caruana Galizia in 2017, who was famous in and outside Malta due to her regular reporting of misconduct by Maltese politicians and politically exposed persons. When she was murdered, more than 40 lawsuits (most for pretended libel) had been filed in Maltese courts; some of them are still pending against her heirs and her family.

The Council of Europe has acknowledged as well the need for a Recommendation on Combating SLAPPs, and is currently working on it (the picture on the right belongs actually to the website of Dunja Mijatović, the Commissioner for Human Rights).

Since February 2018, European MEPs have been calling on the EU Commission to promote anti-SLAPP EU legislation giving investigative journalists and media groups the power to request a rapid dismiss of vexatious lawsuits.

Several EP Resolutions are worth being mentioned in this regard: Resolution of 28 March 2019 on the situation of the rule of law and the fight against corruption in the EU, specifically in Malta and Slovakia (P8_TA(2019)0328); Resolution of 25 November 2020 on strengthening media freedom: the protection of journalists in Europe, hate speech, disinformation and the role of platforms (P9_TA(2020)0320); Resolution of 11 November 2021 on Strengthening democracy and media freedom and pluralism in the EU: the undue use of actions under civil and criminal law to silence journalists, NonGovernmental Organisations (NGOs) and civil society (P9_TA(2021)0451). In all three, the EP condemned the use of SLAPPs to silence or intimidate investigative journalists and other actors, and called on the Commission to present a proposal to prevent them.

Parliament’s move did not fall on deaf ears. The growing number of physical, legal and online threats to and attacks on journalists and other media professionals over the past years was reflected in the Commissions’ 2020 and 2021 Rule of Law Reports.

In September 2021, the Commission presented a Recommendation on ensuring the protection, safety and empowerment of journalists and other media professionals in the European Union.

More important from the regulatory perspective (not in terms of scope, however) is the adoption, on 27 April 2022, of a proposal on a Directive covering SLAPPs in civil matters with cross-border implications. In addition, on the same day the Commission approved a complementary Recommendation to encourage Member States to align their rules with the Directive also for domestic cases and in all proceedings, that is, not only civil matters; it also calls on Member States to take a range of other measures, such as training and awareness raising, to fight against SLAPPs. Both texts, which show a broad political ambition, can be accessed here.

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

By contrast, the Commission Recommendation is described in the official press release as ‘directly applicable’: in the understanding of the Commission, ‘Member States will need to report on implementation to the Commission 18 months after adoption of the Recommendation’. It should be noted that recommendations are not binding acts (a different thing is that the subject of a recommendation is expected to oblige the suggestions made). Moreover, regarding this particular Recommendation the guideline in the sense of aligning national law with the Directive in domestic cases and for all types of proceedings is impossible to comply with until the Directive as such is enacted.

In this post I only intend to present the general features of the proposal and to highlight three of its rules. A couple of comments will be added as quick reactions to which more learned readers may in turn respond.

General Features of the Proposed Directive

The proposal is based on Article 81(2)(f) TFEU.

1. The Union shall develop judicial cooperation in civil matters having cross-border implications, based on the principle of mutual recognition of judgments and of decisions in extrajudicial cases. Such cooperation may include the adoption of measures for the approximation of the laws and regulations of the Member States.
2. For the purposes of paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures, particularly when necessary for the proper functioning of the internal market, aimed at ensuring …

(f) the elimination of obstacles to the proper functioning of civil proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable in the Member States.

Resistance on the side of the Council to this legal base will not come as a surprise (by the way: it may be claimed as well that the Commission is acting outside of clear competences regarding the Recommendation: the principle of conferred competences also applies to non-binding activities of the Union).

To the best of my knowledge, the point was not addressed in any of the meetings of the Expert Group against SLAPP. The only reference to Article 81 TFUE seems to be by way of an answer from the Commission to an expert who asked ‘whether the solutions envisaged will introduce procedural schemes that are new and difficult to enact in different Member States’ in the 6th (and final meeting) of the Expert Group. The Commission replied that ‘the legal basis is linked to article 81 of TFEU which deals with civil matters having cross-border implications but as the Directive is not too prescriptive, Member States will be able to implement the provisions in a way which is consistent with their national systems’.

The proposed Directive aims at enabling judges to swiftly dismiss manifestly unfounded lawsuits against natural and legal persons (not only journalists and human rights defenders, but also academics or researchers) on account of their engagement in public participation. It also requests from the Member States that they establish several procedural safeguards and remedies, such as compensation for damages, and dissuasive penalties for launching abusive lawsuits.

The text consists of 39 recitals and 23 articles divided into six chapters. Recitals 1 to 19 provide in-depth explanations of the SLAPP phenomenon and of related notions in plain and accessible language. Recitals 20 to 34 (actually, recitals 14 and 15 too) define the cross-border setting for the purpose of the Directive, and describe the specific procedural tools and remedies at the service of defendants in SLAPP cases. Recitals 35 and 36 deal with the relationship between the proposed Directive and other EU law acts (none on private international law). Numbers 37, 38 and 39 refer to Denmark and Ireland.

Chapter I (article 1 to 4) is labelled ‘General provisions’. Chapter II (articles 5 to 8) comprises so-called common rules on procedural safeguards. Chapter III (articles 9 to 13) addresses the early dismissal of manifestly unfounded court proceedings. Chapter IV (articles 14 to 16) focuses on remedies against abusive court proceedings. Chapter V (articles 17 and 18) include two rules on protection against third-country judgments. Chapter VI is devoted to the typical final provisions.

Most of the rules of the proposed Directive are purely procedural. In this regard, the proposal appears at first sight as a direct intrusion into the procedural autonomy of the Member States. In fact, if the outcome of the negotiations is similar to the draft, Member States will enjoy most of the times a large marge of manoeuvre when transposing the Directive; actually, it is to be expected that they will be able to claim that existing rules in the domestic systems comply already with (some of) its mandates. Indeed, such rules are normally conceived for domestic litigation; however, courts in the Member States do not usually follow different procedural tracks depending on whether the dispute is purely domestic or has cross-border implications. National procedural provisions created with cross-border litigation in mind are the exception. Interestingly, should new rules be created to accommodate the Directive’s terms, they may get extended to domestic procedures as a consequence of the accompanying Recommendation.

Articles 17 and 18 – Protection Against Proceedings Outside the Union

Article 17, ‘Grounds for refusal of recognition and enforcement of a third-country judgment’, and Article 18, ‘Jurisdiction for actions against third-country judgments’, may deserve a different assessment, i.e., Member States are likely to need enacting new rules to transpose these provisions. Pursuant to Article 17

Member States shall ensure that the recognition and enforcement of a third-country judgment in court proceedings on account of public participation by natural or legal person domiciled in a Member State is refused as manifestly contrary to public policy (ordre public) if those proceedings would have been considered manifestly unfounded or abusive if they had been brought before the courts or tribunals of the Member State where recognition or enforcement is sought and those courts or tribunals would have applied their own law.

The Directive imposes not only the public policy exception as a ground for non-recognition or enforcement of a third State decision independently of whether the Member State affected is a party to a bilateral or multilateral convention: it establishes as well the conditions for its application. Although with an open-ended clause, the Directive also defines what ‘abusive’ litigation is under Article 3(3), thus limiting the freedom of the Member States to give contents to the public policy exception.

According to Article 18,

Member States shall ensure that, where abusive court proceedings on account of engagement in public participation have been brought in a court or tribunal of a third country against a natural or legal person domiciled in a Member State, that person may seek, in the courts or tribunals of the place where he is domiciled, compensation of the damages and the costs incurred in connection with the proceedings before the court or tribunal of the third country, irrespective of the domicile of the claimant in the proceedings in the third country.

The ground for jurisdiction is a forum actoris based on domicile. Many Member States have given up fora privileging the claimant except in cases of asymmetry of the parties to the litigation, capable of creating procedural imbalances between them. It is submitted that on many SLAPP occasions this will be the case, therefore the head of jurisdiction, albeit exorbitant at first sight, will be justified. However, it should be considered that publishers houses and journals are sometimes involved in these disputes supporting or sharing the side of the journalist or human rights defender. Be it as it may, and more relevant: with the current wording, the forum actoris will work also against defendants domiciled in a Member State, if they have filed a claim with a third State. Article 19 – a compatibility clause regarding the Lugano Convention- does not change this outcome; actually, it creates a (further) situation where the Convention and the Brussels Ibis Regulation will apply differently.

Article 4 – An Enlarged Definition of Cross-border Implications

The Directive includes among other a definition of ‘matters with cross-border implications’, whereby a matter is considered to have such implications unless both parties are domiciled in the same Member State as the court seised. In that case – that is to say, when both parties are domiciled in the Member State of the court seised-, the situation is still cross-border for the purposes of the Directive and the transposing legislation if

(a) the act of public participation concerning a matter of public interest against which court proceedings are initiated is relevant to more than one Member State, or

(b) the claimant or associated entities have initiated concurrent or previous court proceedings against the same or associated defendants in another Member State.

The requirements under (a) will be easy to be met in the era of the internet. As for (b), it describes a situation of lis pendens or of related actions in the sense of the Brussels Ibis Regulation, although only for the purposes of applying the Directive, i.e., without (in principle) any consequence on the rules of Articles 29 to 34 of the Regulation. A ‘without prejudice’ recital would nevertheless be advisable.

Moreover, it is submitted that neither (a) nor (b) should be limited to the involvement of Member States, and that such limitation works against the very aim of the Directive. Moreover, for reasons of consistency relating to Article 18, it would make sense to define ‘cross-border implications’ as including acts of public participation relevant to the Member State of the court seized and third States, as well as the situation of parallel or related litigation in a Member State and a third State. Of course, such extension is likely to increase the doubts as regards the basis of the EU legislative initiative. As an alternative, it can be suggested to the Member States that they adopt national rules similar to the EU ones, to be applied to the situations described above.

— Final note: an open-access paper on strategic litigation (SLAPP and beyond) authored by Prof. B. Hess, MPI Luxembourg, member of the MSI-SLP Committee of Experts on Strategic Lawsuits against Public Participation (Council of Europe), will be published in the days to come. An update will follow.