Brussels, 27 April 2022
Today, the European Commission is taking action to improve protection of journalists and human rights defenders from abusive court proceedings. 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 proposed Directive covers SLAPPs in civil matters with cross-border implications. It enables judges to swiftly dismiss manifestly unfounded lawsuits against journalists and human rights defenders. It also establishes several procedural safeguards and remedies, such as compensation for damages, and dissuasive penalties for launching abusive lawsuits. The Commission is also adopting a complementary Recommendation to encourage Member States to align their rules with the proposed EU law also for domestic cases and in all proceedings, not only civil matters. The Recommendation also calls on Member States to take a range of other measures, such as training and awareness raising, to fight against SLAPPs.
Vice-President for Values and Transparency, VěraJourová said:
“We promised to defend better journalists and human rights defenders against those that try to silence them. The new law does that. In a democracy, wealth and power cannot give anyone an advantage over truth. With these measures we are helping to protect those who take risks and speak up when the public interest is at stake – when they report for example on allegations of money laundering and corruption, environmental and climate matters or other issues that are important to us all.”
Commissioner for Justice, DidierReynders, said:
“The active exercise of the fundamental right to freedom of expression and information is key for a healthy and thriving democracy. The EU will always protect that right. Today, we are taking important steps to safeguard journalists and civil society who are increasingly under threat from SLAPPs. SLAPPs delay or even prevent the publication of statements of public interest SLAPPs also put an unnecessary burden on courts. We are now providing instruments to keep that abusive practice in check.”
Proposal for an EU law against SLAPPs
The proposed Directive provides courts and targets of SLAPPs with the tools to fight back against manifestly unfounded or abusive court proceedings. The proposed safeguards will apply in civil matters with cross-border implications. The safeguards are expected to benefit in particular journalists and persons or organisations engaged in defending fundamental rights and a variety of other rights, such as environmental and climate rights, women’s rights, LGBTIQ rights, the rights of the people with a minority racial or ethnic background, labour rights or religious freedoms, but all persons engaged in public participation on matters of public interest are covered. The safeguards have been targeted to ensure the balance of access to justice and privacy rights with the protection of freedom of expression and information. The main elements of the proposal are:
- Early dismissal of a manifestly unfounded court proceedings– courts will be able to take an early decision to dismiss the proceedings if a case is manifestly unfounded. In such a situation, the burden of proof will be on the claimant to prove that the case is not manifestly unfounded;
- Procedural costs– it will be for the claimant to bear all the costs, including the defendant’s lawyers’ fees, if a case is dismissed as abusive;
- Compensation of damages– the target of SLAPP will have a right to claim and obtain full compensation for the material and immaterial damage;
- Dissuasive penalties– to prevent claimants from starting abusive court proceedings, the courts will be able to impose dissuasive penalties on those who bring such cases to the court.
- Protection against third-country judgements– Member States should refuse recognition of a judgment coming from a non-EU country, against a person domiciled in a Member State, if the proceedings would be found to be manifestly unfounded or abusive under the Member State’s law. The target will also be able to ask for compensation of the damages and the costs in a Member State where he or she is domiciled in.
Recommendation for Member States
The Commission Recommendation also adopted today complements the Directive and encourages Member States to ensure that:
- National legal frameworks provide the necessary safeguards,similar to those at EU level, to address domestic cases of SLAPPs. This includes ensuring the procedural safeguards of an early dismissal of manifestly unfounded court proceedings. Member States would also need to ensure that their rules applicable to defamation, which is one of the most common grounds for launching SLAPPs, do not have an unjustified impact on the freedom of expression, on the existence of an open, free and plural media environment, and on public participation.
- Trainingis available for legal professionals and potential SLAPP targets to improve theirknowledge and skillsto effectively deal with these court proceedings. The European Judicial Training Network (EJTN) will be involved to ensure coordination and that information is disseminated in all Member States;
- Awareness raising and information campaignsare organised, so that journalists and human rights defenders do recognize when they are facing a SLAPP;
- Targets of SLAPP have access to individual and independent support, such as from law firms that defend SLAPP targets pro bono;
- Aggregated data collected at national levelon manifestly unfounded or abusive court proceedings against public participation is reported to the Commission on a yearly basis, starting as of 2023.
The proposed Directive will have to be negotiated and adopted by the European Parliament and the Council before it can become EU law.
The Commission Recommendation is directly applicable. Member States will need to report on implementation to the Commission 18 months after adoption of the Recommendation.
TheEuropean Democracy Action Plan, adopted in December 2020, announced a series of initiatives to support and safeguard media freedom and pluralism. In this context, the Commission presented in September 2021 its first-everRecommendation to Member States on the safety of journalists. Another step is made today with measures to protect journalists and civil society organisations against abusive litigation. The use of SLAPPs is increasing in the EU, with targets often facing multiple lawsuits simultaneously and in multiple jurisdictions. Such court proceedings have a negative impact on the willingness and ability of journalists and human rights defenders to continue their work, and a chilling effect on freedom of expression, freedom of information and a pluralistic public debate.
The prevalence of SLAPP is a matter of serious concern in some Member States, as identified by the2020and2021 Rule of Law Reports. In 2021, theMedia Freedom Rapid Response(MFRR) documented 439 alerts (with 778 persons or entities related to media being attacked) in 24 EU Member States, including SLAPPs. In more than 1 out of 5 of those incidents (22.1% – 97 alerts) media actors faced legal consequences.
Together with increasing threats to their physical and online safety, legal threats and abusive litigation add to an environment where hostile activity against journalists is growing and can have a serious impact on their willingness and ability to continue their work. A tragic example of the use of SLAPP is the journalist Daphne Caruana Galizia who was facing more than 40 lawsuits at the time of her assassination in 2017. The aim of SLAPPs lawsuits is not to access justice but to harass, intimidate and silence defendants with the length of procedures, the financial pressure and the threat of criminal sanctions. Journalists are not the only targets; human rights defenders and civil society organisations, especially those working on human rights and the environment also face SLAPP.
As part of its efforts to protect the independence and the pluralism of the media, and as announced by Presidentvon der Leyenin her2021 State of the Union speech, the Commission will present the Media Freedom Act. This initiative is expected to be adopted in thethird quarter of this year.
For More Information
Coalition Against SLAPPs in Europe (CASE)
Speech by Vice-President Jourová on abusive lawsuits against journalists and human rights defenders ‘SLAPPs’
Today, we have made an unprecedented decision. It is the first time we propose legislation to strengthen the rights and protect the journalists and human rights defenders. In other words: to protect those who dare to speak up from attempts to have their voices silenced by abusive lawsuits, known as SLAPPs.
It is a great relief for myself because I made a promise to the family of Daphne Caruana Galizia, murdered Maltese journalist. I made that promise because after Daphne was killed, she still had more than 40 SLAPPs, mainly in the United Kingdom, to deal with.
We worked on this in the name of Daphne and I had a feeling that Daphne was working with us on that. There is a special moral imperative behind it.
The use of such abusive lawsuits is increasing in the EU. We started by collecting data, which showed that this phenomenon of abusive of justice against the freedom of speech in fact, is on the rise. Our last two Rule of Law Reports have highlighted concerns about this in several Member States.
Civil society has been active in mapping SLAPP cases and shedding some light on the true magnitude of the phenomenon, although it is at the moment still difficult to know the exact figures.
A key feature of many SLAPPs is the imbalance of power and financial resources between parties. Those bringing these lawsuits are wealthy and powerful. The targets usually not so. The fight is an unequal one. This amplifies the chilling effect of such lawsuits.
It is not uncommon to target journalists and human rights defenders with multiple lawsuits at once, in several different jurisdictions.
Whatever the tactics, the aim of SLAPPs is to harass, consume the resources and drain the morale of their targets. All this in order to restrict, prevent or punish them for speaking up to inform the public.
It is a David and Goliath fight. Yet, in democracy, the role of journalists and those that keep power in check is tremendous. The package that we propose today – a directive and a recommendation to Member States – will ensure that they can exercise this role.
First, let me say a few words about the legally binding piece of our work, which is the directive. The directive offers safeguards against SLAPPs. We designed them with the aim of nipping SLAPPs in the bud and neutralizing their harmful effect on public participation and on the exercise of human rights and fundamental freedoms.
The safeguards will work in three ways:
One – they will enable Courts to speedily dismiss claims which are manifestly unfounded; this is the cornerstone of the proposal and will make abusive litigation less attractive;
Two – they will enable Courts to swiftly identify elements indicating that a case is abusive and order a series of remedies to the benefit of the SLAPP targets;
Three – they will deter such practices by allowing Courts to impose dissuasive penalties on an abusive claimant.
The proposed directive also includes protection for EU journalists and rights defenders against SLAPPs initiated against them in third countries.
The directive applies to civil law proceedings with cross-border implications as they are extremely complex to handle for the targets and prone to forum shopping.
As I said before, we also accompany this Directive with the Recommendation, which is designed to complement the directive and to encourage Member States to align their rules to cover also domestic cases.
We also want to ensure that decisive action is taken by Member States to address some of the root causes of SLAPP, which are in their competence, not in ours at the EU level.
SLAPPs are often brought on defamation grounds. This is why we ask Member States to make sure that their defamation laws are clear and prevent misuse or abuse.
In some, but not all Member States defamation is still a criminal offence that carries a prison sentence.
Member States are therefore encouraged to abolish prison sentences for defamation cases. They should favour the use of administrative or civil law, instead of criminal law, for such cases.
Other measures in the recommendation are meant to help build awareness and expertise among SLAPP targets, legal professionals and other groups.
The recommendation also aims to ensure that those facing SLAPP can count on support.
As I mentioned at the beginning, at the moment it is still difficult to have a complete overview of all abusive cases. This is why we are asking Member States to collect certain data on SLAPPs and report to the Commission so that we can monitor the situation and fight this vile practice together.
This is not the collection of data only for the sake of monitoring but for the sake of stronger cooperation with Member States.
Ladies and gentlemen,
Protecting democracy and rule of law can only be done when the watchdogs are allowed to do their work freely and when the public interest prevails over private considerations.
I believe that the measures we are proposing today will go a long way towards that goal. They have to be seen in the bigger picture of the work we are doing to defend democracy, protect journalists and safeguard media freedom. The Recommendation will become effective immediately. I trust that the Directive will be negotiated quickly and come into force soon.
A few years ago, very few people had heard of SLAPP, let alone realised the extent to which powerful individuals were using it to silence journalists and rights defenders.
Now we will make sure that this practice is in the spotlight and that within the EU, it is stopped.
Moreover, this is not the last thing we will do to protect the media and journalists. Later this year we will propose the Media Freedom Act. The aim is to have safeguards at EU level to protect the independence of the media and media pluralism.