Brussels unveils ground-breaking proposal to prevent and penalise SLAPP lawsuits

The European Commission has proposed legislation to prevent and penalise cross-border civil lawsuits meant to harass journalists and human rights defenders.

The proposal released today tackles strategic lawsuits against public participation, commonly known as ‘SLAPPs', which are used primarily to prevent or penalise talk on public interest issues.

The legislative proposal 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 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 and member states will need to report on implementation 18 months after adoption.

SLAPP action or the threat of it reached its climax in Malta in 2017 when it was used against Maltese journalists and media houses, including murdered journalist Daphne Caruana Galizia, by the now shuttered Pilatus Bank that was being investigated over money laundering.

Vice-President for Values and Transparency, Věra Jourová 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.”

EU Justice Commissioner Didier Reynders said the EU will always protect the fundamental right to freedom of expression and information since it is key for a healthy and thriving democracy.

“Today, we are taking important steps to safeguard journalists and civil society who are increasingly under threat from SLAPPs… We are now providing instruments to keep that abusive practice in check,” Reynders said.

David Casa welcomes proposal: ‘Libel tourism is being addressed’

MEP David Casa, who is Co-Chair of the Media Working Group of the European Parliament, welcomed the commission’s proposal.

“After four years of hard work, it is immensely gratifying to see significant progress on press freedom in Europe,” he said.

PN MEP David Casa formed part of the European Parliament's Media Working Group

Casa was heavily involved in raising awareness in Brussels and advocating for a legal, Europe-wide solution to address vexatious lawsuits. In the European Parliament, he led political efforts by academics, journalists, and activists to put an end to the issue.

“I am pleased to see that what the Commission is proposing is exactly what we have been campaigning for. We are seeing libel tourism being addressed, which currently allows businesses to sue small media houses in jurisdictions with much heftier fines. And the Directive will also foresee dissuasive penalties for abusive practices,” Casa said.

He said that the proposal was a working solution that will bolster protections for journalists, especially those working on public interest investigations against corrupt entities and governments with deeper pockets and more resources than entire news agencies.

Casa said the European SLAPP situation was by far the worst in Malta. “We had cabinet ministers and the prime minister himself suing journalists with a pile of cases, even after they were murdered.”

Between 2010 and 2021, Malta had the highest number of SLAPP suits per capita in Europe.

The Media Working Group of the European Parliament is a cross-party alliance of MEPs campaigning for journalistic safety and press freedom across Europe. In the past years, it has led efforts in the European Parliament to support journalists under threat. It is co-chaired by David Casa (EPP Group) and by Romanian MEP Ramona Strugariu (Renew Group).

WHAT DOES THE PROPOSAL CONTAIN?

The proposal is for an EU law that provides courts and targets of SLAPPs with the tools to fight back against manifestly unfounded or abusive legal proceedings. The proposed safeguards will apply in civil matters with cross-border implications.

The main elements of the proposal are:

1. 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

2. 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

3. Compensation of damages – the target of SLAPP will have a right to claim and obtain full compensation for the material and immaterial damage

4. 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

5. 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 to member states:

In parallel, the commission is recommending that member states adopt national legal frameworks that 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.