The European Parliament on 11 July 2023 adopted its negotiating position on the proposal for a directive on the protection of persons who engage in public participation from manifestly unfounded or abusive court proceedings, also known as strategic lawsuits against public participation (SLAPPs).
The Parliament will now start discussions on this basis with the European Council, whose first position has been analysed by Pietro Franzina in a previous post on this blog.
The text resulting from the Council’s general approach departs from the initial proposal (analysed by Marta Requejo in a previous post on this blog), in various respects.
The most significant innovations include the following.
Subject Matter
Parliament specified that the directive poses a set of minimum standards of protection and safeguards against manifestly unfounded or abusive court proceedings in civil matters, as well as the threats thereof, with cross-border implications brought against natural and legal persons engaging in public participation. No specification on journalists and human rights defenders is provided.
Scope
The scope of the proposed directive should apply to matters of a civil or commercial nature having cross-border implications, including interim and precautionary measures, counteractions or other particular types of remedies available under other instruments, whatever the nature of the court or tribunal. Parliament, then, specified the directive tool as posing minimum requirements. Member States, indeed, may introduce or maintain more favourable provisions than the safeguards provided for in this directive against manifestly unfounded and abusive court proceedings in civil matters. As a result, the implementation of this directive shall in no circumstances constitute grounds for a reduction in the level of safeguards already afforded by Member States in the matters covered by this directive.
Definitions
Parliament clarified the definition of ‘public participation’ to mean any statement or activity by a natural or legal person expressed or carried out in the exercise of the right to freedom of expression and information, academic freedom, or freedom of assembly and association, and preparatory, supporting or assisting action directly linked thereto, on a matter of public interest. This includes complaints, petitions, administrative or judicial claims, the participation in public hearings, the creation, exhibition, advertisement or other promotion of journalistic, political, scientific, academic, artistic, satirical communications, publications or works.
Also the ‘matter of public interest’ is deepened by the Parliament, adding fundamental rights including gender equality, media freedom and consumer and labour rights, as well as the already indicated public health, safety, the environment or the climate. Activities of a person or entity in the public eye or of public interest includes governmental officials and private entities too. Allegations of corruption and fraud are extended, comprising also embezzlement, money laundering, extortion, coercion, sexual harassment and gender-based violence, or other forms of intimidation, or any other criminal or administrative offence, including environmental crime. All activities aimed to protect the values enshrined in Article 2 TEU, the principle of non-interference in democratic processes, and to provide or facilitate public access to information with a view to fighting disinformation are included.
The ‘fully or partially unfounded’ element related to these proceedings is better explained, that is when characterised by elements indicative of a misuse of the judicial process for purposes other than genuinely asserting, vindicating or exercising a right and have as their main purpose to abusively prevent, restrict or penalize public participation. Indications of such a purpose are added and further clarified, as follows. It is added the misuse of economic advantage or political influence by the claimant against the defendant, leading to an imbalance of power between the two parties. Intimidation, harassment or threats on the part of the claimant or his or her representatives can occur before or during the proceedings, as well as any previous history of legal intimidation by the claimant. It is then added also the use in bad faith of procedural tactics, such as delaying proceedings, and choosing to pursue a claim that is subject to the jurisdiction of the court that will treat the claim most favourably, or the discontinuation of the cases at a later stage of the proceedings.
Matters with Cross-Border Implications
The aim is to cover as many cases as possible, working on the cross-border notion in order to enlarge it. Cross-border implications, indeed, occur for the Parliament if the act of public participation is relevant to more than one Member State, either due to the cross-border dimension of the act itself or due to the legitimate interest which the public may take in the matter concerned by the act, including if the act is accessible via electronic means. The other element, i.e. the filing of concurrent or previous proceedings against the same or associated defendants in another Member State, is confirmed by the Parliament.
Application for Procedural Safeguards
Providing expeditious court proceedings is outlined. Member States shall ensure that courts or tribunals seised with an application for procedural safeguards in the proceedings in relation to which the application has been sought using the most expeditious procedures available under national law, taking into account the circumstances of the case, the right to an effective remedy and the right to a fair trial.
According to the Parliament, then, Member States shall (not ‘may’) provide that measures on procedural safeguards in accordance with chapters on early dismissal and remedies can be taken by the court or tribunal seised of the matter ex officio.
Assistance to natural or legal persons engaging in public participation is added. Member States shall ensure that natural or legal persons engaging in public participation have access, as appropriate, to support measures, in particular the following: (a) comprehensive and independent information and advice which is easily accessible to the public and free of charge on procedures and remedies available, on protection against intimidation, harassment or threats of legal action, and on their rights; and (b) legal aid in accordance with Directive 2003/8/EC, and, in accordance with national law, legal aid in further proceedings, and legal counselling or other legal assistance; (c) financial assistance and support measures, including psychological support, for those targeted by abusive court proceedings against public participation.
Third Party Intervention
The third party intervention is strengthened: in addition to widening the audience of interveners, their role is increased. Member States shall take the necessary measures to ensure that a court or tribunal seised of court proceedings against public participation may accept that associations, organisations and other collective bodies, such as trade unions, and any other legal entities which have, in accordance with the criteria laid down by their national law, a legitimate interest in safeguarding or promoting the rights of persons engaging in public participation may take part in those proceedings, either on behalf or in support of the defendant, with his or her approval or to provide information, in any judicial procedure provided for the enforcement of obligations under this directive. This provision is without prejudice to existing rights of representation and intervention as guaranteed by other Union or national rules.
Security
Security for procedural costs, or for procedural costs and damages, is remodelled as security for costs of the proceedings, including the full costs of legal representation incurred by the defendant and damage. Where national law provides for such possibility, security may be granted to the defendant at any stage of the court proceedings.
Early Dismissal
Member States shall (not ‘may’) establish time limits for the exercise of the right to file an application for early dismissal. The time limits shall be also reasonable.
Award of Costs
The claimant who has brought abusive court proceedings against public participation is to be ordered to bear all the costs. Where national law does not guarantee the award in full of the costs of legal representation beyond statutory fee tables, Member States shall ensure that such costs are fully covered by other means available under national law, and, where appropriate, through compensation of damages in accordance with Article 15.
Compensation of Damages
Full compensation for harm is clarified covering material or non-material harm, including reputational harm, without the need to initiate separate court proceedings to that end.
Penalties and National Register
Parliament added that Member States shall ensure that courts or tribunals imposing penalties take due account of: (i) the economic situation of the claimant; (ii) the nature and number of the elements indicating an abuse identified.
In addition, Member states shall take appropriate measures to establish a publicly accessible register of relevant court decisions falling within the scope of this directive, in accordance with Union and national rules on the protection of personal data.
Jurisdiction for Actions Against Third-Country Judgements
Parliament modified this matter, stating that the concerned person shall (not ‘may’) have the right granted under Article 18.
Jurisdiction, Applicable Law and Relations with Union Private International Law Instruments
On jurisdiction matters, a new article has been included stating that in defamation claims or other claims based on civil or commercial law which may constitute a claim under this directive, the domicile of the defendant should be considered to be the sole forum, having due regard to cases where the victims of defamation are natural persons. With the exception of the latter new added Article, this directive then shall not affect the application of the Brussels I bis Regulation.
On the applicable law, in claims regarding a publication as an act of public participation, the applicable law shall be the law of the place to which that publication is directed to. In the event of it not being possible to identify the place to which the publication is directed, the applicable law shall be the law of the place of editorial control or of the relevant editorial activity with regard to the act of public participation. With the exception of the latter new added Article, this directive shall not affect the application of the Rome II Regulation.
Union Register
The Commission shall take appropriate measures to establish a publicly accessible Union register, on the basis of the information provided in accordance with the Article concerning the national register, of relevant court decisions falling within the scope of this directive, in accordance with Union rules on the protection of personal data.
Awareness-Raising
A new addition by the Parliament. Member States shall take appropriate action, including via electronic means, aimed at raising awareness about strategic lawsuits against public participation and the procedural safeguards set out in this directive against them. Such action may include information and awareness-raising campaigns and research and education programmes, where appropriate in cooperation with relevant civil society organisations and other stakeholders.
One-Stop Shop
Parliament included a new article establishing a ‘one-stop shop’ comprising dedicated national networks of specialised lawyers, legal practitioners and psychologists, which targets of SLAPPs can contact, and through which they can receive guidance and easy access to information on, and protection against SLAPPs, including regarding legal aid, financial and psychological support.
Training of Practitioners
To foster prevention of the initiation of SLAPPs and protection of targeted natural or legal persons, it is crucial to promote relevant information, awareness-raising, campaigns, education and training, including on their rights and protection mechanisms. Parliament proposed that, with due respect for the independence of the legal profession, Member States should recommend that those responsible for the training of lawyers make available both general and specialist training to increase the awareness of strategic lawsuits against public participation and the procedural safeguards against them provided for in this directive. Training should also be provided to legal professionals in order to increase awareness of abusive court proceedings and be able to detect them at a very early stage.
Cooperation and Coordination of Services
Member States should take appropriate action to facilitate cooperation between Member States to improve the access of those targeted by manifestly unfounded or abusive court proceedings against public participation to information on procedural safeguards provided for in this directive and under national law. Such cooperation should be aimed at least at: (a) the exchange of current practices; and (b) the provision of assistance to European networks working on matters directly relevant to those targeted by manifestly unfounded or abusive court proceedings against public participation.
Deontological Rules for Legal Professionals
Member States shall, with due respect for the independence of the legal profession, encourage the adoption by professional associations of deontological rules that guide the conduct of legal professionals to discourage the taking of abusive lawsuits against public participation, and where appropriate, considering measures to address any violation of those rules.
Data Collection
Member States shall, taking into account their institutional arrangements on judicial statistics, entrust one or more authorities to be responsible to collect and aggregate, in full respect of data protection requirements, data on abusive court proceedings against public participation initiated in their jurisdiction. Data referred to shall include, in particular, many specified criteria.
Transposition into National Law
Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this directive according to the Parliament by 1 years, compared to the 2 years of the original Commission text.
In addition, Member States shall apply this directive also to cases pending before a national court at the time of entry into force of the national rules transposing this directive.
The Parliament will now start discussions on this basis with the European Council, whose first position has been analysed by Pietro Franzina in a previous post on this blog.
The text resulting from the Council’s general approach departs from the initial proposal (analysed by Marta Requejo in a previous post on this blog), in various respects.
The most significant innovations include the following.
Subject Matter
Parliament specified that the directive poses a set of minimum standards of protection and safeguards against manifestly unfounded or abusive court proceedings in civil matters, as well as the threats thereof, with cross-border implications brought against natural and legal persons engaging in public participation. No specification on journalists and human rights defenders is provided.
Scope
The scope of the proposed directive should apply to matters of a civil or commercial nature having cross-border implications, including interim and precautionary measures, counteractions or other particular types of remedies available under other instruments, whatever the nature of the court or tribunal. Parliament, then, specified the directive tool as posing minimum requirements. Member States, indeed, may introduce or maintain more favourable provisions than the safeguards provided for in this directive against manifestly unfounded and abusive court proceedings in civil matters. As a result, the implementation of this directive shall in no circumstances constitute grounds for a reduction in the level of safeguards already afforded by Member States in the matters covered by this directive.
Definitions
Parliament clarified the definition of ‘public participation’ to mean any statement or activity by a natural or legal person expressed or carried out in the exercise of the right to freedom of expression and information, academic freedom, or freedom of assembly and association, and preparatory, supporting or assisting action directly linked thereto, on a matter of public interest. This includes complaints, petitions, administrative or judicial claims, the participation in public hearings, the creation, exhibition, advertisement or other promotion of journalistic, political, scientific, academic, artistic, satirical communications, publications or works.
Also the ‘matter of public interest’ is deepened by the Parliament, adding fundamental rights including gender equality, media freedom and consumer and labour rights, as well as the already indicated public health, safety, the environment or the climate. Activities of a person or entity in the public eye or of public interest includes governmental officials and private entities too. Allegations of corruption and fraud are extended, comprising also embezzlement, money laundering, extortion, coercion, sexual harassment and gender-based violence, or other forms of intimidation, or any other criminal or administrative offence, including environmental crime. All activities aimed to protect the values enshrined in Article 2 TEU, the principle of non-interference in democratic processes, and to provide or facilitate public access to information with a view to fighting disinformation are included.
The ‘fully or partially unfounded’ element related to these proceedings is better explained, that is when characterised by elements indicative of a misuse of the judicial process for purposes other than genuinely asserting, vindicating or exercising a right and have as their main purpose to abusively prevent, restrict or penalize public participation. Indications of such a purpose are added and further clarified, as follows. It is added the misuse of economic advantage or political influence by the claimant against the defendant, leading to an imbalance of power between the two parties. Intimidation, harassment or threats on the part of the claimant or his or her representatives can occur before or during the proceedings, as well as any previous history of legal intimidation by the claimant. It is then added also the use in bad faith of procedural tactics, such as delaying proceedings, and choosing to pursue a claim that is subject to the jurisdiction of the court that will treat the claim most favourably, or the discontinuation of the cases at a later stage of the proceedings.
Matters with Cross-Border Implications
The aim is to cover as many cases as possible, working on the cross-border notion in order to enlarge it. Cross-border implications, indeed, occur for the Parliament if the act of public participation is relevant to more than one Member State, either due to the cross-border dimension of the act itself or due to the legitimate interest which the public may take in the matter concerned by the act, including if the act is accessible via electronic means. The other element, i.e. the filing of concurrent or previous proceedings against the same or associated defendants in another Member State, is confirmed by the Parliament.
Application for Procedural Safeguards
Providing expeditious court proceedings is outlined. Member States shall ensure that courts or tribunals seised with an application for procedural safeguards in the proceedings in relation to which the application has been sought using the most expeditious procedures available under national law, taking into account the circumstances of the case, the right to an effective remedy and the right to a fair trial.
According to the Parliament, then, Member States shall (not ‘may’) provide that measures on procedural safeguards in accordance with chapters on early dismissal and remedies can be taken by the court or tribunal seised of the matter ex officio.
Assistance to natural or legal persons engaging in public participation is added. Member States shall ensure that natural or legal persons engaging in public participation have access, as appropriate, to support measures, in particular the following: (a) comprehensive and independent information and advice which is easily accessible to the public and free of charge on procedures and remedies available, on protection against intimidation, harassment or threats of legal action, and on their rights; and (b) legal aid in accordance with Directive 2003/8/EC, and, in accordance with national law, legal aid in further proceedings, and legal counselling or other legal assistance; (c) financial assistance and support measures, including psychological support, for those targeted by abusive court proceedings against public participation.
Third Party Intervention
The third party intervention is strengthened: in addition to widening the audience of interveners, their role is increased. Member States shall take the necessary measures to ensure that a court or tribunal seised of court proceedings against public participation may accept that associations, organisations and other collective bodies, such as trade unions, and any other legal entities which have, in accordance with the criteria laid down by their national law, a legitimate interest in safeguarding or promoting the rights of persons engaging in public participation may take part in those proceedings, either on behalf or in support of the defendant, with his or her approval or to provide information, in any judicial procedure provided for the enforcement of obligations under this directive. This provision is without prejudice to existing rights of representation and intervention as guaranteed by other Union or national rules.
Security
Security for procedural costs, or for procedural costs and damages, is remodelled as security for costs of the proceedings, including the full costs of legal representation incurred by the defendant and damage. Where national law provides for such possibility, security may be granted to the defendant at any stage of the court proceedings.
Early Dismissal
Member States shall (not ‘may’) establish time limits for the exercise of the right to file an application for early dismissal. The time limits shall be also reasonable.
Award of Costs
The claimant who has brought abusive court proceedings against public participation is to be ordered to bear all the costs. Where national law does not guarantee the award in full of the costs of legal representation beyond statutory fee tables, Member States shall ensure that such costs are fully covered by other means available under national law, and, where appropriate, through compensation of damages in accordance with Article 15.
Compensation of Damages
Full compensation for harm is clarified covering material or non-material harm, including reputational harm, without the need to initiate separate court proceedings to that end.
Penalties and National Register
Parliament added that Member States shall ensure that courts or tribunals imposing penalties take due account of: (i) the economic situation of the claimant; (ii) the nature and number of the elements indicating an abuse identified.
In addition, Member states shall take appropriate measures to establish a publicly accessible register of relevant court decisions falling within the scope of this directive, in accordance with Union and national rules on the protection of personal data.
Jurisdiction for Actions Against Third-Country Judgements
Parliament modified this matter, stating that the concerned person shall (not ‘may’) have the right granted under Article 18.
Jurisdiction, Applicable Law and Relations with Union Private International Law Instruments
On jurisdiction matters, a new article has been included stating that in defamation claims or other claims based on civil or commercial law which may constitute a claim under this directive, the domicile of the defendant should be considered to be the sole forum, having due regard to cases where the victims of defamation are natural persons. With the exception of the latter new added Article, this directive then shall not affect the application of the Brussels I bis Regulation.
On the applicable law, in claims regarding a publication as an act of public participation, the applicable law shall be the law of the place to which that publication is directed to. In the event of it not being possible to identify the place to which the publication is directed, the applicable law shall be the law of the place of editorial control or of the relevant editorial activity with regard to the act of public participation. With the exception of the latter new added Article, this directive shall not affect the application of the Rome II Regulation.
Union Register
The Commission shall take appropriate measures to establish a publicly accessible Union register, on the basis of the information provided in accordance with the Article concerning the national register, of relevant court decisions falling within the scope of this directive, in accordance with Union rules on the protection of personal data.
Awareness-Raising
A new addition by the Parliament. Member States shall take appropriate action, including via electronic means, aimed at raising awareness about strategic lawsuits against public participation and the procedural safeguards set out in this directive against them. Such action may include information and awareness-raising campaigns and research and education programmes, where appropriate in cooperation with relevant civil society organisations and other stakeholders.
One-Stop Shop
Parliament included a new article establishing a ‘one-stop shop’ comprising dedicated national networks of specialised lawyers, legal practitioners and psychologists, which targets of SLAPPs can contact, and through which they can receive guidance and easy access to information on, and protection against SLAPPs, including regarding legal aid, financial and psychological support.
Training of Practitioners
To foster prevention of the initiation of SLAPPs and protection of targeted natural or legal persons, it is crucial to promote relevant information, awareness-raising, campaigns, education and training, including on their rights and protection mechanisms. Parliament proposed that, with due respect for the independence of the legal profession, Member States should recommend that those responsible for the training of lawyers make available both general and specialist training to increase the awareness of strategic lawsuits against public participation and the procedural safeguards against them provided for in this directive. Training should also be provided to legal professionals in order to increase awareness of abusive court proceedings and be able to detect them at a very early stage.
Cooperation and Coordination of Services
Member States should take appropriate action to facilitate cooperation between Member States to improve the access of those targeted by manifestly unfounded or abusive court proceedings against public participation to information on procedural safeguards provided for in this directive and under national law. Such cooperation should be aimed at least at: (a) the exchange of current practices; and (b) the provision of assistance to European networks working on matters directly relevant to those targeted by manifestly unfounded or abusive court proceedings against public participation.
Deontological Rules for Legal Professionals
Member States shall, with due respect for the independence of the legal profession, encourage the adoption by professional associations of deontological rules that guide the conduct of legal professionals to discourage the taking of abusive lawsuits against public participation, and where appropriate, considering measures to address any violation of those rules.
Data Collection
Member States shall, taking into account their institutional arrangements on judicial statistics, entrust one or more authorities to be responsible to collect and aggregate, in full respect of data protection requirements, data on abusive court proceedings against public participation initiated in their jurisdiction. Data referred to shall include, in particular, many specified criteria.
Transposition into National Law
Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this directive according to the Parliament by 1 years, compared to the 2 years of the original Commission text.
In addition, Member States shall apply this directive also to cases pending before a national court at the time of entry into force of the national rules transposing this directive.
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