September 27. 2023. 12:55

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EU Council endorses anti-SLAPP directive position, not everyone is convinced

The EU Council of Ministers agreed on Friday (9 June) on a general approach to the anti-SLAPP directive, which aims to tackle abusive lawsuits filed to silence journalists and rights defenders, but not everyone is convinced it goes far enough.

The directive, which seeks to combat Strategic Lawsuits Against Public Participation (SLAPPs), was first proposed by the Commission last year. The EU ministers at the Justice and Home Affairs Council in Luxembourg on Friday expressed broad support for the Council’s version of the text.

“The text that we have now is a very important step in the right direction to stop these lawsuits”, said the Austrian Minister of Justice, Alma Zadić, at the meeting.

Vienna’s view, she added, was that “this is a very important law because it’s about freedom of expression, which is one of the basic pillars of our democracies and needs to be protected. We’re talking about journalists, those who are defending human rights, those who are protecting women’s and LGBTQI rights, and we have to achieve that.”

SLAPPs are lawsuits that are designed to censor, intimidate, and silence critics or whistleblowers by burdening them with high legal fees and lengthy procedures with no intention of actually winning the suit. They are often filed in jurisdictions that differ from that of the plaintiff or subject, known as libel tourism, and offer lower standards of protection for freedom of speech or media and higher costs.

The initiative came about following pressure and campaigns from European civil society after Maltese investigative journalist Daphne Caruana Galizia was murdered in 2017. At the time of her death, she was facing more than 40 such suits, many of which were inherited by her children posthumously. As such, the directive is also known as “Daphne’s Law”, in honour of her work.

But the usage of SLAPPs in Europe has been increasing in recent years as data collated by the Coalition Against SLAPPs in Europe (CASE) found that 2020, 2021 and 2019 were the three highest years on record regarding the number of cases in Europe.

European Commission presents directive to tackle abusive lawsuits against journalists, NGOs

The European Commission published its long-awaited anti-SLAPPs directive on Wednesday (27 April), legislation aimed at combating the rising use of abusive lawsuits designed to silence journalists and activists.

The Commission’s original proposal focused on cases with “cross-border implications”. This label will apply to all cases where the parties involved are domiciled in different countries and those where the public participation concerned is seen as a matter of public interest in more than one member state.

The directive is also accompanied by a recommendation detailing how member states can enact similar measures for domestic cases that do not have international implications.

Speaking at the Council meeting on Friday, Gunnar Strömmer, Sweden’s Justice Minister, said that the Presidency had sought to strike a balance between two key objectives in the formulation of its approach: the provision of strong safeguards against the abuse of civil proceedings and the need to maintain the right to effective access to justice.

“An important concern was that the directive should not impede legitimate claims from being pursued at the Courts”, he said, adding, “I believe that we have found the necessary balance by modifying some of the original provisions.”

These changes touched upon the provisions on dismissal proceedings, potential security for costs and damages, and penalties.

Still, Strömmer insisted that the resulting text provides “strong protection for journalists, human rights defenders and others against court proceedings launched with the purpose of intimidating and silencing them, both within and outside the Union.”

Watered down approach

However, based on early drafts of the Council’s approach, civil society organisations have raised concerns that the original proposal has been watered down.

Speaking to EURACTIV in May, Article 19 Europe director, Sarah Clarke, said that key protections had been weakened during negotiations, particularly those related to cross-border cases and raising the threshold for cases to fall within the directive’s scope.

EU must go further to protect journalists from abusive litigation, expert says

The Council’s latest draft of the EU anti-SLAPP directive is significantly watered down and does not go far enough to protect journalists from lawsuits designed to harass and intimidate them, director of Article 19 Europe Sarah Clarke told EURACTIV in an interview.

At the Council meeting on Friday, Justice Commissioner Didier Reynders also expressed regrets over what he said was the weakening of certain aspects of the Commission’s text, in particular, the deletion of the provision on the compensation of damages and the weakening of the provisions on the award of costs.

“The compensation of damages is an important ancillary element to achieve the objectives of the anti-SLAPP directive and fully in line with the legal basis”, he said. “Moreover, award of costs, including the full cost of legal representation, is a key measure of protection to those targeted with SLAPPs.”

Reynders also noted, in reference to the fact that the Council deleted the Commission’s article covering cases with cross-border implications, that such a definition “is meant to ensure legal certainty given the specific circumstances under which matters of public participation have cross-border implications.”

This point was also raised by the Hungarian representative at the meeting, who described the deletion of the article as “quite problematic” and said they would seek to address the issue in the upcoming trilogues to obtain legal certainty on the issue.

While member states at the meeting largely supported the Council’s approach, a few noted specific outstanding questions or said they would have preferred even stronger measures in some areas.

Germany voiced support for the principle that cases be carefully and not summarily examined to ensure that the courts properly deal with people who have been slandered in some way, but said that EU countries would find a way of adequately implementing the directive to accommodate this.

Both Malta and Ireland indicated that the text could have gone further. In particular, Galizia’s home country said that they would have preferred more ambition in the provisions on scope and compensation for damages, a far cry from their not-so-distant-past stance that there was no need for such a directive.

Once the European Parliament has concluded its own work on the text, the three institutions will progress to trilogue negotiations to produce a final version.

Lawmakers to start work on anti-SLAPP, stakeholders warn just ‘first step’

The Commission’s anti-SLAPPs directive is a necessary starting point but will not be enough on its own to comprehensively tackle the issue of abusive litigation, a key lawmaker working on the file said on Thursday (20 October).

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