Slovenia Adopts Anti-SLAPP Legislation
This post was written by Jerca Kramberger Škerl, Professor of Private International Law and Civil Procedure at the University of Ljubljana, Faculty of Law, and Working Group member for Slovenia in the EAPIL Working Group on Anti-SLAPP Directive Transpositions.
On 28 January, the Slovenian Parliament adopted the Act on Protective Measures concerning Strategic Lawsuits against Public Participation. The Act is currently awaiting promulgation by the President of the Republic and publication in the Official Gazette, both of which are expected to occur shortly. The Act is expected to enter into force within approximately one month.
The Act applies to both cross-border and purely domestic proceedings, thus going beyond a mere transposition of the EU Anti-SLAPP Directive. It introduces, first, specific procedural rules applicable in civil proceedings involving SLAPPs, including cross-border cases conducted before Slovenian courts. Second, it establishes a new ground for refusing recognition and enforcement of foreign judgments issued in SLAPP proceedings in non-EU countries.
The extension of Anti-SLAPP protection to criminal proceedings was extensively debated during the legislative process but was ultimately postponed to a future amendment of criminal procedural legislation. Nevertheless, Article 20 partially addresses this issue by allowing courts to order security for costs where criminal proceedings for defamation in the media are initiated.
The Act provides for the following protective measures:
- security for the defendant’s costs;
- support and assistance for the defendant;
- expedited proceedings and early dismissal of manifestly unfounded claims;
- reimbursement of the full amount of costs;
- compensation and publication of the judgment;
- monetary sanction.
Each of these measures merits detailed analysis. For present purposes, however, only two will be addressed.
Monetary Sanction
The monetary sanction may raise questions in a cross-border context, particularly regarding its legal nature and beneficiary. Under the Act, the sanction takes the form of a fine imposed on the claimant and payable to the State budget. It does not constitute punitive damages awarded to the defendant, as a supplement to the compensation for actual harm suffered. The defendant is therefore not the creditor of the fine and cannot seek its enforcement abroad. In this respect, Slovenian law remains consistent with its traditional adherence to compensatory damages and its general rejection of punitive or exemplary damages.
Reimbursement of the Full Amount of Costs
The reimbursement of the full amount of costs likewise requires clarification, as rules on procedural costs vary significantly across EU Member States. Slovenia follows the “loser pays” principle, subject to a corrective mechanism whereby costs caused by the fault of one party (for example, unjustified absence from a hearing) must be borne by that party.
Under the general regime, reimbursable lawyers’ fees — which typically constitute the largest portion of procedural costs — are limited to amounts determined under the Lawyers’ Tariff. This tariff assigns values to specific procedural acts and is used to calculate recoverable costs at the conclusion of proceedings. Parties are nevertheless free to agree on higher fees with their legal representatives, which is common practice, or even on a pactum de quota litis. Such agreements, however, do not affect the tariff-based calculation of recoverable costs.
The new Anti-SLAPP Act departs from this limitation by allowing reimbursement of the full amount of costs actually incurred as a result of a SLAPP. This includes costs exceeding the amounts calculated under the Lawyers’ Tariff and therefore represents a significant protective measure for defendants targeted by abusive litigation.