Strengthening Anti-SLAPPs Legal Protection in the Western Balkans
While the implementation of Directive (EU) 2024/1069 is underway across EU Member States, and it will have to be done according to the timing already indicated in this blog, attention is increasingly turning to the pressing need to strengthen anti-SLAPPs protections in the Western Balkans. The issue of SLAPPs is a growing concern in this region, where robust legal frameworks and policy measures are essential to safeguard freedom of expression and democratic values.
In this context, the Council of Europe recently hosted a regional exchange on combatting SLAPPs, bringing together key stakeholders from the Western Balkans. The event highlighted the challenges faced by journalists and civil society organizations targeted by such lawsuits, which often exploit legal systems to intimidate and financially burden individuals and groups speaking truth to power.
One of the critical outcomes of this initiative is the publication of the Regional Baseline Assessment of Legislative and Policy Needs for Implementing Anti-SLAPP Standards in the Western Balkans. The regional assessment was prepared by Flutura Kusari and is based on domestic assessments which were prepared by Aulona Hazbiu (Albania), Svjetlana Milišić-Veličkovski (Bosnia and Herzegovina), Flutura Kusari (Kosovo), Aneta Spaic (Montenegro), Dragan Sekulovski (North Macedonia) and Gordana Konstantinović (Serbia).
The report examines the current legislative landscape in the region and identifies gaps that undermine effective protection against SLAPPs. It also offers tailored recommendations to align domestic laws with international standards, including those outlined in the European Court of Human Rights’ case law and the Council of Europe’s legal framework, such as the Recommendation CM/Rec(2024)2 of the Committee of Ministers to member States on countering the use of strategic lawsuits against public participation (SLAPPs). In addition to substantive and procedural law aspects, it also encompasses issues related to cross-border cases.
Chapter 3 of the report, which focuses on general recommendations, provides an in-depth exploration of measures needed to establish effective mechanisms for countering SLAPPs. It underscores the critical need for a lex specialis — specific legislation designed to directly address the unique nature of SLAPPs. This approach recognizes that existing legal frameworks are often insufficient to tackle the particular challenges these lawsuits present.
Additionally, the report extends its analysis by offering jurisdiction-specific recommendations tailored to the legal framework of Albania, Bosnia and Herzegovina, Kosovo, Montenegro, North Macedonia and Serbia.
The report emphasizes the necessity for a holistic approach to effectively counter SLAPPs. It advocates for the implementation of robust legal safeguards that ensure the protection of individuals and organizations engaged in public participation. The main recommendations, aligned with the analytical sections of the report, encompass early dismissal mechanisms, burden of proof adjustments, security for procedural costs, compensatory damages and restitution of legal costs, acknowledgement of SLAPP victim status, capping of costs and damages for claimants and non-judicial remedies.
Finally, chapter 13 of the report discusses the added complexity of cross-border SLAPPs, where claimants file lawsuits in foreign jurisdictions to exploit more favourable legal environments. Defending such cases requires navigating multiple legal systems, significantly increasing costs, time and stress, and amplifying the chilling effect on public participation.
The report highlights the need to limit forum shopping — selecting jurisdictions that disadvantage defendants or undermine freedom of expression. It cites the relevant Council of Europe’s recommendations on the matter and the Directive (EU) 2024/1069, which both emphasize the refusal of recognition and enforcement of third-country judgments if the case is deemed manifestly abusive or unfounded. In addition, both instruments mandate that Member States provide individuals or entities who are subject to abusive legal actions from claimants outside the EU or Council of Europe the opportunity to seek compensation for any damages or costs incurred through these proceedings in their domestic courts.
National laws on private international law and civil procedure of the Western Balkans countries scrutinized govern whether foreign court decisions can be enforced. References to the grounds for refusal are provided on a State-by-State basis.
In the conclusions of the report, the assessment examines the legislative and policy gaps in Western Balkans countries concerning anti-SLAPP standards. It finds that, while existing procedural safeguards in civil matters could support anti-SLAPP implementation, significant gaps remain, particularly in victim recognition and specific rules for security for costs. Compensation for damages, including non-pecuniary harm, is available in all countries, but none explicitly recognize SLAPP victims or offer automatic rights to compensation. Media self-regulatory bodies exist but lack formal authority in legal proceedings. Recognition and enforcement of judgements in cross-border SLAPP cases are governed by national laws, with common grounds for refusal including jurisdictional issues, procedural irregularities and public policy.
Thank you for your timely and insightful blog on the pressing topic of strengthening Anti-SLAPPs legal protection. Good news that the PRO-FREX report deems the Council of Europe Recommendation CM/Rec(2024)2 and the Anti-SLAPP Directive (EU) 2024/1069 as minimum ‘European standards’, which I assume includes the recent Real Madrid ruling. The implementation of these European standards in the Western Balkans would be a game-changer, not just for the region, but for the broader global fight against SLAPPs. Looking forward to seeing how these developments unfold!
As stated in the PRO-FREX report and the Council of Europe Recommendation, it is important to limit forum shopping in respect of defamation to ensure freedom of expression. From a perspective of EU PIL, this purpose should be considered when reviewing the Brussel Ibis Regulation given the broad opportunities for forum shopping based on the eDate ruling in particular (see my forthcoming article in the journal ‘Nederlands International Privaatrecht’ 2024, no. 4).
Dear Birgit,
Thank you very much for your comment and encouraging feedback.
The PRO-FREX project and its comprehensive report are indeed laudable. By placing a spotlight on the Western Balkans, it highlights the need for regional alignment with European (Union included) legal frameworks. This initiative underscores how strengthening anti-SLAPP protections in these countries is vital I assume not only for local freedom of expression and public participation but also for reinforcing the region’s commitment to European values and standards. This alignment, however, does not seem to be straightforward.
Continuing your excellent point on the Council of Europe Recommendation CM/Rec(2024)2 and the Directive (EU) 2024/1069 as setting minimum ‘European standards’, I believe there is room to envision even more. Specifically, I am referring to the possibility that these measures could constitute a full-fledged ‘Strasbourg/Brussels effect’. Such an effect would be most welcome, as it has the potential to influence legal practices and protections far beyond European borders. That said, this effect must also be compared to and reconciled with other anti-SLAPP frameworks that have been developed and adopted in different areas of the world. For instance, the diverse approaches in force in certain US States illustrate a range of regulatory tools and strategies tailored to specific legal and cultural contexts. While an international ‘consensus’ on anti-SLAPPs legal protection is undoubtedly desirable, these existing frameworks offer a valuable toolkit to address challenges in the (we hope) interim situation of a non-existing global scale legislation.
Regarding the Real Madrid ruling, it is indeed a critical component of the EU acquis in this area.
Strange as it may sound, the issue resembles a dog chasing its tail. Let me explain.
Essentially, multiple rights are at play: on one side, the right to personality and the right of access to justice for the victim of defamation when such personality rights are infringed; on the other, the right to freedom of expression of the journalist/professional/activist, which is closely tied to public participation. However, when jurisdiction exists and access to justice is granted, the very act of exercising or even threatening to exercise such access, if done abusively, reveals the essence of a SLAPP case. This has a (negative) impact, potentially jeopardizing freedom of expression and public participation.
Furthermore, in cross-border cases, access is compounded by an additional layer of complexity, as interpreted by the CJEU in the eDate case and related rulings. This creates an avenue for strategic abuse through forum shopping, enabling the proliferation of proceedings across multiple jurisdictions. Coordinating such cases, even with rules on lis pendens and related actions, is far from straightforward.
Striking a balance is therefore particularly challenging.
Limiting access to justice, aside from the judicially desirable criterion of a close connection between the claim and the forum, risks undermining the substantive right to personality that the victim seeks to protect. At the same time, abusive exercise of access to justice threatens freedom of expression and, by extension, public participation.
In summary, any revision of the Brussels I bis Regulation must consider a broad range of issues, but it is crucial not to overlook the underlying substantive rights at stake. Jurisdiction, whether deemed to exist or not depending on the case, should be viewed as a fundamental tool to ensure the effective protection of these related substantive rights.
Your forthcoming article in Nederlands International Privaatrecht will undoubtedly offer important insights into these issues, and I look forward to reading it.
Thank you again for your engagement, and I look forward to continuing the dialogue on this pressing (in every sense of the word) topic.
Warm regards,
Marco
Thank you very much Marco for your interesting and valuable feedback. The ‘Brussels effect’ you envisage sounds great, but as you indicate ‘European standards’ are not always consistent with legal systems or approaches developed in other parts of the world. In my article, I argue that the full scope of the jurisdiction of EU Member State courts under Article 17(1) Anti-SLAPP Directive to assess the damage and the costs incurred in connection with the third-state proceedings may even be criticised by third countries “as a negative kind of ‘Brussels effect’” which could lead to the refusal to recognise the resulting judgments of Member States (see NIPR 2024, no. 4, p. 671). We’ll soon have another opportunity to exchange ideas on this pressing topic!
Thank you very much, Birgit, for your precise reply.
I believe you are right: the EU legislator’s approach in Directive (EU) 2024/1069, regarding both the jurisdiction provision and that on recognition and enforcement, appears to be shaped by the concept of a European judicial area (so, intra-EU and extra-EU).
Problems can be faced in the intra-EU logic, as evidenced by the CJEU’s ruling in the Real Madrid case, when obstacles to circulation can arise within the EU itself.
The extra-EU dimension, however, is equally significant. There could indeed be a need to ensure the circulation of judicial outcomes stemming from proceedings initiated in EU Member States based on this new jurisdictional title. This might be necessary to enforce a judgement ordering compensation when assets to be targeted are located outside the EU. Alternatively, even beyond the economic perspective, a judgment may require recognition in a third country for its social impact in such matters. Yet, in the third country, the often-present ground for refusal of recognition and enforcement of a judgement such as that of ‘indirect’ jurisdiction, or the general application of the public policy exception, highlights tangible challenges in this respect.
Looking forward to your thoughts in your new contribution!
Thank you, Marco, for this important update. Legal protection of public participation is a crucial issue nowadays, and protection against SLAPPs is a key implication of this. One of the aspects worthy of further consideration is the heterogeneity of the phenomenon: SLAPPs see as victims journalists, activists and other public participants who can be involved in damages suits having very different characteristics. This is intertwined with the heterogeneity of the national legal systems in which SLAPPs are initiated.
Even from a PIL perspective, as noted by the debate on possible reforms to EU regulations, it is often difficult to intervene to protect a particular category (or to counter a particular phenomenon) without breaking delicate balances . Finding a solution to each demand is indeed complex.
Dear Francesca,
Thank you very much for your thoughtful comment and for adding further valuable insights to this ongoing discussion.
The complexity of addressing SLAPPs indeed lies in the diversity of the actors involved — journalists, environmental activists, and other individuals or groups harmed through damages suits, each presenting unique characteristics and challenges. This is compounded by the (substantial and procedural) heterogeneity of the national legal systems where SLAPPs are initiated, which are often highly divergent and sometimes even contradictory.
Given the variety of both the situations and the legal frameworks, harmonization itself poses a significant challenge. Perhaps the overlooked perspective lies in recognizing the potential role of Article 114 TFEU as the legal basis for a more decisive and robust harmonization effort to address SLAPPs. When the political will has been present, action has been taken — consider, for instance, Regulation (EU) 2024/1083 (European Media Freedom Act).
From a PIL perspective, particularly within the EU framework, I acknowledge the difficulty legislators face when attempting to craft measures that protect a specific category or counteract a targeted phenomenon without disrupting delicate legal balances. Yet, I believe a critical reference point must be the values enshrined in Article 2 TEU. When legislators (EU one included) address SLAPPs, they are engaging directly with the fundamental values of the Union. These values underline the significance of intervention in this area. However, I concur with you that private international law solutions must always remain mindful of the foundational principles the EU PIL regulations aim to.
Thus, to return to the point above, the internal market perspective, which is inherently linked to the issue, could perhaps be further emphasized.
Thank you once again for your contribution to this conversation!
Warm regards,
Marco
Thank you for this update on such a complex topic. SLAPPs raise cross-border issues and touch on numerous interests, all deserving to be protected. It will be interesting to see whether the solutions proposed by the Directive and suggested by the Council of Europe in terms of private international law (particularly regarding the forum actoris for the victim of SLAPPs initiated in third countries by foreign plaintiffs) would be sufficient to protect public participation in Europe or if more nuanced approaches will be necessary.
Thank you, Edoardo, for your insightful comment and for engaging with this intricate field of study.
You are absolutely correct that SLAPPs require a delicate balancing of multiple issues and interests, all of which deserve careful protection. The forum actoris mechanism introduced by Directive (EU) 2024/1069 indeed marks a significant step toward ensuring access to justice for victims when defendants are based in third countries.
However, several doubts remain, such as:
• Recital 44 of Directive (EU) 2024/1069 states that “The provision laid down in this Directive concerning that special ground of jurisdiction should not deal with applicable law or with substantive law on damages as such”. This perpetuates the long-standing issue of the lack of conflict-of-laws rules harmonised at EU level in such matters. This means maximum variability in conflict-of-law rules across Member States. And within the domestic laws of individual Member States, this also results in a wide divergence regarding the components of recoverable damages.
• Article 17(2) of Directive (EU) 2024/1069 provides that “Member States may limit the exercise of jurisdiction under paragraph 1 while proceedings are still pending in the third country”. While I understand, intuitively, the reasoning behind this provision, I find it challenging to fully grasp its rationale in this context. Let me explain:
Imagine a SLAPP action is initiated in a third country, and pursuant to Article 17(1) of Directive (EU) 2024/1069, as implemented, a victim brings a damages claim before a Member State court. If the Member State has implemented Article 17(2) Directive (EU) 2024/1069, the Member State court may suspend proceedings. In the meantime, however, the SLAPP action exerts its maximum negative impact — both on the victim and on public participation. Why should such a provision exist, particularly when Directive (EU) 2024/1069 already provides a definition of “abusive court proceedings against public participation” that could, in principle, be readily (burden aside) identified by the Member State court? Does this require awaiting the outcome of the proceedings in the third country? Hopefully not. Yet, time passes as the third-country proceedings unfold, and public participation is inevitably undermined.
• A broader yet persistent issue: If the SLAPP author in the third country has no ‘attachable’ assets within the EU and thus disregards the damages action filed in a Member State, how can public participation be effectively protected in such cases?
Dear Marco,
I read your blog and the report—both were insightful! The report provides a solid foundation, though I believe it would benefit from a more in-depth analysis. The PIL aspect of the directive appears quite complex for Albania.
In Albania, adopting a lex specialis approach is somewhat challenging, as we prioritize Codes over ordinary laws due to the qualified majority required for their approval. Issues of private international law are regulated by a separate law, except for the recognition and enforcement of judgments, which are governed by the provisions of the Civil Procedure Code.
Moreover, having too many laws may not be helpful for the parties involved. Significant adjustments are needed in the current Albanian legislation, including revisiting the definition of domicile as outlined in the Regulation. We use habitual residence as connecting factors for determining court jurisdiction. These are just some of my preliminary thoughts.
Best,
Aida
Dear Aida,
Thank you so much for your comment and the insights you have shared. It’s truly invaluable to benefit from an exchange with someone like you, with deep expertise from one of the countries involved in the report.
The issue of where to place this ad hoc legislation is far from trivial and remains highly significant for EU Member States themselves.
The Directive (EU) 2024/1069 contains substantive provisions, purely procedural rules and private international law rules. How these will be implemented is far from clear. Will they be incorporated into the civil procedural code? Or perhaps into the private international law act of the Member State? And in either case, how will they handle the substantive provision on damage compensation?
A recent test case on this matter was the implementation of the Directive (EU) 2020/1828 on representative actions for the protection of collective consumer interests. The provisions of this Directive have shown significant variability across Member States, including in terms of systematic placement within national legal frameworks.
The placement issue is not merely technical (where these provisions can be found) but has a substantial impact on their interpretation and consistency. I agree entirely that this is an aspect to monitor closely. I also note that, in Albania’s context, this will equally be a relevant issue with significant implications.
As for the choice of the domicile criterion, Article 5 of Directive (EU) 2024/1069 expressly refers to Regulation (EU) No 1215/2012 (Brussels I bis Regulation). Therefore, the two instruments must be read together. Revisiting the domicile criterion and replacing it with habitual residence would require a systematic approach, starting from Brussels I bis.
However, in Albania, as well as in many EU Member States, domestic private international law instruments do not always rely solely on the domicile criterion. I see the potential issues on the point. This will need to be considered during the implementation and application phases.
Thank you again for your preliminary thoughts — they are truly valuable and much appreciated!
Best,
Marco