The latest draft of the EU’s anti-SLAPP directive has significantly watered down by governments 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.

Strategic Lawsuits Against Public Participation (SLAPPs) are abusive lawsuits filed by a private party with the purpose of silencing critical speech – often by corporations or wealthy individuals against journalists, news outlets or members of civil society.

At the time of her murder in October 2017, Maltese investigative journalist Daphne Caruana Galizia was facing 47 open libel cases against her.

In the wake of Caruana Galizia’s death, the Coalition Against SLAPPs in Europe (CASE), an alliance of over 80 NGOs, was formed.

Clarke, who is on CASE’s steering committee, told EURACTIV: “We had two main aims in terms of advocacy – that was to get through a solid, strong directive and a Council of Europe recommendation on anti-SLAPPs.”

“We were really happy with the first draft of the directive that was launched in April of last year. And then we got this compromise text.”

According to a draft compromise of the EU Council of Ministers, dated 2 March, several of the key protections have been watered down – particularly the provisions for cross-border cases, and the threshold for the cases that fall under the scope of the directive was increased.

In an open letter to the Swedish presidency of the Council of Ministers, CASE wrote: “The sum effect of these changes would be to gut the potential impact and efficacy of any future directive.”

“This law is colloquially known as ‘Daphne’s Law’. But as it stands in this compromise text, it wouldn’t protect Daphne from any of the cases she was facing,” Clarke said.

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Defining abuses

According to a study commissioned by CASE, the number of SLAPPs filed in Europe increased every year between 2010 and 2021, with defamation being the dominant legal basis (460 out of the 570 identified cases), followed by insult or denigration (18), privacy or GDPR violations (10) and harassment (4).

Over half of the cases targeted individuals, while businesses or business people were the biggest group of complainants (32%), followed by politicians or public service workers (23%), then state-owned entities (12%).

The anti-SLAPP directive seeks to balance a plaintiff’s access to justice – for example, to defend themselves against libellous claims – with protections for civil society members against the exploitation of the legal system to stifle critical speech. As such, the definition of what constitutes a SLAPP is key, Clarke said.

“We would have always said that these are abusive cases. But they’ve raised that definition to what’s called ‘manifestly unfounded’,” she explained. “This is a claim which is so obviously unfounded that there is no scope for any reasonable doubt […] this is an incredibly high threshold,” she added.

“If you create a bar that’s so high, out of the 570 cases we’ve mapped out for CASE, we’d see only about 10% that would qualify [for protection under the directive].”

Most European civil codes already provide protections in such instances, she added.

Harmonising national approaches

Another key concern is the entire removal of the article that defined matters with cross-border implications, Clarke said. Complainants often file their cases in whichever country is the most plaintiff-friendly, incurring huge legal fees for the defendant, she explained.

“As a result, that leaves no pertinent guidance for the harmonised implementation of the directive,” she said.

While some member states already have national legislation in place, others are far behind, Clarke explained.

“SLAPPs in each country take different forms and approaches,” Clarke said. “So the national working solutions are different […] and really important for the legitimacy of the work.”

Ireland’s housing crisis means environmental campaigners or those writing on construction issues are particularly affected, she explained, adding that in contrast, in the UK, it is more common to see oligarchs suing journalists reporting on corruption.

In Italy, bishops have sued journalists for reporting on child abuse, while cases in France have tended to be initiated by multinationals such as Bolloré.

“If the directive is strong enough, we can achieve reform at a very quick level […] but we also need to see member states do more within their own systems,” she said.

“In virtually all states, it requires legal solutions. But then it also requires non-legislative solutions: we need to see greater funding made available for victims of SLAPPs at the moment, especially coming from the Commission. We also have a lot of training of judges to do, as these are quite new cases.”

“It’s a long road – there’s a lot of work to do,” Clarke concluded.

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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.