EU proposals “an important first step” - but member states need to do more
On 27 April this year, the European Commission unveiled a much-anticipated legislative package designed to protect journalists and human rights defenders from abusive lawsuits - that is, SLAPPs.
That package has two main components: a draft Directive that will, when it passes through the EU legislative process, have binding power, and a Recommendation that does not.
Following discussion between project partners, a session at RightsCon and an online seminar, the PATFox project has submitted formal feedback to the European Commission on the proposals. Here are some of the key points we raised:
The draft Directive is an important first step that takes account of much of what civil society has been asking for, but those measures are not sufficient on their own to tackle the problems on the ground. Many of the SLAPPs we see in project countries lack the cross-border element necessary to bring them into the remit of the draft Directive. It is essential that EU member states adopt the non-binding measures found in the Recommendation.
The draft Directive makes a distinction between “manifestly unfounded” and “abusive” lawsuits that we think is unhelpful and even counterproductive in practice. Early dismissal should be available for all abusive lawsuits - given that valid claims can always be framed in a non-abusive manner, this could provide a proper incentive for litigants to frame their claims in an appropriate manner.
We recognise that the European Commission has sought to make the definition of ‘cross-border’ cases as broad as possible - taking account of public interest implications that cross borders. This should be retained and reinforced as the legislative process goes forward.
The proposed Directive should apply to pending cases, not just future ones.
Many of the SLAPP cases we see in PATFox countries concern the abuse of administrative and criminal law. These kinds of cases largely fall under the Recommendation, which calls on EU member states to review the relevant legal frameworks to ensure they protect fundamental rights. This may require significant changes in the civil and administrative procedures of some member states and we recommend the Commission provides financial support for the review process that will have to take place in those jurisdictions.
Finally, the Recommendation also encourages Member States to support training activities to ensure judges and legal professionals are appropriately trained about unfounded and abusive court proceedings in order to increase their knowledge and awareness. At the early stages of the PATFox project it is already clear that there is a large untapped demand for anti-SLAPP training in many EU member states, and that this extends to citizens and specific groups likely to become targets of SLAPPs, as well as legal professionals.
You can read our submission in full here.