The Commission explains that “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.

The main elements of the proposal are:

• early dismissal of manifestly unfounded court proceedings: courts will be able to take an early decision to dismiss the proceedings if a case is manifestly unfounded; 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 a 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 court; and
• protection against third-country judgments: Member States should refuse recognition of a judgment 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 damages and costs in the Member State where he or she is domiciled.

The Recommendation for Member States encourages Member States to ensure that:

• national legal frameworks contain similar safeguards to those at EU level, to address domestic cases of SLAPPs, including ensuring the early dismissal of manifestly unfounded court proceedings, and ensuring that their defamation laws do not have an unjustified impact on freedom of expression, media plurality and public participation;
• training is available for legal professionals and potential SLAPP targets to improve knowledge and skills to effectively deal with this type of court proceeding; the European Judicial Training Network (EJTN) will be involved to ensure coordination and dissemination of information in all Member States;
• awareness raising and information campaigns are instigated so that journalists and human rights defenders recognise 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; and
• aggregated data collected at national level on manifestly unfounded or abusive court proceedings against public participation is reported to the Commission on a yearly basis, starting in 2023.

The proposed Directive will now be negotiated and agreed by the European Parliament and the Council. The Commission Recommendation is directly applicable. Member States will need to report on implementation to the Commission 18 months after adoption of the Recommendation. To read the Commission’s announcement in full, click here.