SLAPPs Directive Adopted
On 19 March 2024, the Council of the European Union approved the position of the European Parliament at first reading on the proposal for a directive on protecting persons who engage in public participation from manifestly unfounded or abusive court proceedings, also known as Strategic lawsuits against public participation, or SLAPPs. The directive has thereby been formally adopted (the final text can be read here) and will be published shortly on the Official Journal of the European Union.
It will enter into force on the twentieth day following that of its publication in the Official Journal. Member States will then have two years to transpose the directive into national legislation.
The directive is addressed to all Member States with the usual exception of Denmark. Ireland, for its part, made known, back in 2022, its wish to take part in the adoption and application of the directive.
Object and Scope
The directive, as stated in Article 1, provides safeguards against manifestly unfounded claims or abusive court proceedings in civil matters brought against natural and legal persons – typically journalists, activists, human rights defenders, etc. – on account of their engagement in public participation.
The legal basis being Article 81(2)(f) of the Treaty on the Functioning of the European Union (“the European Parliament and the Council … shall adopt measures … 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”), the directive only applies to claims and proceedings (including procedures for interim and precautionary measures and counteractions, whatever the nature of the court or tribunal) with cross-border implications.
As clarified in Article 5, a matter is considered to have cross-border implications for the purposes of the directive “unless both parties are domiciled in the same Member State as the court seised and all other elements relevant to the situation concerned are located only in that Member State”.
Pursuant to Article 4(3), the term “abusive court proceedings against public participation” refers to proceedings “which are not brought to genuinely assert or exercise a right, but have as their main purpose the prevention, restriction or penalisation of public participation … and which pursue unfounded claims”. Under the directive, as clarified in Article 4(2), “public participation” means “the making of any statement or the carrying out of any activity by a natural or legal person in the exercise of the right to freedom of expression and information, freedom of the arts and sciences, or freedom of assembly and association, and any preparatory, supporting or assisting action directly linked thereto, and which concerns a matter of public interest”.
A matter is to be considered of public interest for the purposes of the directive if it “affects the public to such an extent that the public may legitimately take an interest in it”, and relates to areas such as (a) fundamental rights, public health, safety, the environment or the climate; (b) activities of a natural or legal person that is a public figure in the public or private sector; (c) matters under consideration by a legislative, executive, or judicial body, or any other official proceedings; (d) allegations of corruption, fraud, or of any other criminal offence, or of administrative offences in relation to such matters; (e) activities aimed at protecting the values enshrined in Article 2 of the Treaty on European Union, including the protection of democratic processes against undue interference, in particular by fighting disinformation;
According to Article 4(3), in assessing whether the claimant purports to prevent, restrict or penalise public participation the following elements may be considered, by way of example: (a) the disproportionate, excessive or unreasonable nature of the claim or part thereof, including the excessive dispute value; (b) the existence of multiple proceedings initiated by the claimant or associated parties in relation to similar matters; (c) intimidation, harassment or threats on the part of the claimant or the claimant’s representatives, before or during the proceedings, as well as similar conduct by the claimant in similar or concurrent cases; (d) the use in bad faith of procedural tactics, such as delaying proceedings, fraudulent or abusive forum shopping or the discontinuation of cases at a later stage of the proceedings in bad faith.
Procedural Safeguards
Article 6 stipulates that Member States shall ensure that persons targeted by a SLAPP can apply, in accordance with national law, for: (a) a security; (b) an early dismissal of the claim; (c) additional remedies such as the award of costs and the issuance of penalties. The mentioned safeguards remain available notwithstanding any subsequent amendment of the pleadings made by the claimant, including the withdrawal of the claim itself.
Security
Article 10 asks Member States to ensure that the court seised of a SLAPP “may require, without prejudice to the right of access to justice, that the claimant provide security for the estimated costs of the proceedings, which may include the costs of legal representation incurred by the defendant, and, if provided for in national law, damages”.
Early Dismissal
Individuals targeted by a SLAPP can ask the court to dismiss the claim at the earliest possible stage, pursuant to Article 11. In addition, Article 12(2) requires that Member States ensure that “where a defendant has applied for early dismissal, it shall be for the claimant to substantiate the claim in order to enable the court to assess whether it is not manifestly unfounded”. Article 13 provides that decision granting early dismissal must be subject to an appeal.
Costs and penalties
As stated in Article 14, claimants, if they are found to have brought abusive court proceedings against public participation can be ordered to bear “all types of costs of the proceedings that can be awarded under national law, including the full costs of legal representation incurred by the defendant unless such costs are excessive”. Where national law does not guarantee the award in full of the costs of legal representation
beyond what is set out in statutory fee tables, Member States shall ensure that such costs are fully covered, unless they are excessive, by other means available under national law.
Article 15 requires that Member States must ensure that courts or tribunals seised of a SLAPP may impose “effective, proportionate and dissuasive penalties or other equally effective appropriate measures, including the payment of compensation for damage or the publication of the court decision, where provided for in national law, on the party who brought those proceedings”.
Protection from SLAPPs Brought in a Third Country
The directive includes two provisions the aim of which is to protect persons domiciled in the Union from SLAPPs initiated in a State outside the Union.
Article 16, titled “Grounds for refusal of recognition and enforcement of a third-country judgment”, requires that Member States ensure that the recognition and enforcement of a third-country judgment given in the framework of court proceedings against public participation targeting a natural or legal person domiciled in a
Member State is refused “if those proceedings are considered manifestly unfounded or abusive
under the law of the Member State in which such recognition or enforcement is sought”.
According to Article 17 (“Jurisdiction for actions related to third-country proceedings”), Member States must ensure that, where abusive court proceedings against public participation have been brought by a claimant domiciled outside the Union in a third-country against a natural or legal person domiciled in the Union, the latter person “may seek, in the courts or tribunals of the place where that person is domiciled,
compensation for the damage and the costs incurred in connection with the proceedings before the court or tribunal of the third-country”. It is provided, however, that Member States may limit the exercise of jurisdiction under the previous provision for as long as proceedings are pending in the third-country.
Other Provisions
The directive further asks Member states to put in place rules that would allow associations, organisations and trade unions to support the defendant. Specifically, Article 9 requires that a court seised of a SLAPP “may accept that associations, organisations, trade unions and other 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 support the defendant, where the defendant so approves, or provide information in those proceedings in accordance with national law”.