2022 Rule of Law Report: SLAPPs are a growing concern in the European Union

This month the European Commission released the 2022 Rule of Law Report, which includes an overview of the trends in the EU as a whole and 27 country chapters looking at developments in every Member State since July 2021.

As announced by President von der Leyen in her 2021 State of the Union address, this year’s report for the first time contains specific recommendations addressed to each Member State to encourage them to take forward ongoing or planned reforms and help them identify where improvements are needed.

As with previous editions, the report examines developments in four key areas for the rule of law: justice systems, the anti-corruption framework, media pluralism and freedom, and other institutional issues linked to checks and balances.

For the first time, the report also looks into public service media, recognising their special role for society and democracy in defending the rule of law by holding power and institutions to account. The report’s media focus comes ahead of the publication of the European Media Freedom Act, scheduled for release in September, which is set to establish a legal framework for safeguarding media independence and pluralism.

By reminding that EU Member States have a positive obligation to guarantee an enabling environment for journalists, protect their safety and promote media pluralism and freedom, the report also stresses that safeguards are needed to ensure that the independence of public service media is protected, especially against political or state pressure or control that undermines both freedom of speech and expression and the freedom to seek, receive and impart information.

Strategic lawsuits against public participation (SLAPPs) are listed among the challenges identified by the European Commission as a particular form of harassment used against journalists and human rights defenders engaged in public participation on matters of public interest, often on the grounds of defamation.

This phenomenon has been gaining ground in the EU. In Croatia, the number of cases of abusive litigation targeting journalists remains high, threatening the existence of smaller, local media outlets and freelance journalists. There continue to be a number of examples of such lawsuits against journalists by politicians or public officials, including judges. In Poland, the news media community continues to be exposed to threats stemming from strategic lawsuits against public participation that appear to target mainly journalists scrutinising Government action.

The report also mentions that in some Member States civil society organisations face challenges, attacks and threats, including SLAPPs.

In light of this, the Commission stresses that effective safeguards are needed to prevent such harassment from silencing journalists and activists, and create a chilling effect on media freedom and freedom of expression.

In Lithuania, legislative amendments have been prepared to allow for the early dismissal of such cases, as well as revising the criminal liability for defamation. In Ireland, the Department of Justice initiated a review which led to recommendations looking at a new mechanism against SLAPP allowing for early dismissal. In Malta, the Government has proposed legislative amendments to reform certain procedural aspects of the defamation law. In Italy, while prison sentences for defamation have largely been abolished following a landmark Constitutional Court ruling in 2021, the increasing prevalence of SLAPP cases and the combination of criminal and civil defamation raises concerns. Amendments in Slovakia to reduce the punishment for defamation are still pending.

In April 2022, the Commission adopted a package of measures to protect journalists and civil society organisations against abusive litigation: the Proposal for a Directive on protecting persons who engage in public participation from manifestly unfounded or abusive court proceedings (“Strategic lawsuits against public participation), and the Recommendation protecting journalists and human rights defenders who engage in public participation from manifestly unfounded or abusive court proceedings (“Strategic lawsuits against public participation”).

The PATFox project submitted formal feedback to the European Commission on the proposal. You can read our submission in full here.