The European Commission’s Proposed Model Law on Strategic Lawsuits against Public Participation (SLAPPs) – How Far Does It Go?

Originally published by Aditus

Strategic Lawsuits against Public Participation (SLAPPs) are commonly identified as abusive lawsuits that are used as a particular form of harassment used primarily against journalists and human rights defenders. SLAPPs can be manifestly unfounded claims, or they could also present other forms of abuse, where the claim is not unfounded but there is an exaggerated use of legal procedures or other aspects of the legal system to harass and deter the person being litigated against.

The assassination of Daphne Caruana Galizia in 2017 sparked called from civil society activists and a group of European MEPs to call on the EU Commission to draft an anti-SLAPP directive. At the time of her assassination, she had 47 libel suits, including one in the United States, and she had received multiple threats from London-based law firms. A recent report by the Coalition Against SLAPPs in Europe (CASE) found that Malta had the highest rate of SLAPPs per capita, whilst it also noted that the number of SLAPP cases across Europe have been increasing year on year.

“The ultimate goal is to achieve a chilling effect, silence the defendants and deter them from pursuing their work.” –

European Commission, draft SLAPP Model Law

What the draft Directive Covers and What it Doesn’t

In April 2022 the Commission published a proposed model law on SLAPPs. The proposed Directive covers manifestly unfounded or abusive cases for civil matters with cross-border implications. The safeguards found in the proposal aim to protect journalists and persons that are engaged in defending fundamental right and also extend to media and publishing houses, civil society organisations and also researchers and academics. At the same time, the Commission has stated these provisions strike a balance between access to justice and privacy rights with the protection of freedom of expression and information.

Elements of the Draft Directive

The Directive introduces definitions of key terms such as “public participation“, “matter of public interest” and crucially “abusive court proceedings against public participation“, which are defined as proceedings “brought in relation to public participation that are fully or partially unfounded and have as their main purpose to prevent, restrict or penalize public participation.” It also clarifies that there could be a cross-border element in those cases where also both parties are domiciled in the same Member State, if the matter of public interest in question is relevant to more than one Member State or if there are concurrent court proceedings in another Member States against the same of associated defendants.

The draft Directive introduces a number of key elements:

• Early dismissal of manifestly unfounded court proceedings: courts will be able to dismiss at an early stage, in full or in part, court proceedings against public participation as manifestly unfounded. This should be done on application by the defendant and shall be treated in an accelerated fashion. The burden of proof must be placed on the claimant to prove that the claim is not manifestly unfounded.

• Procedural Costs: the claimant who has brought abusive court proceedings against public participation will be ordered to bear all the costs of the proceedings.

• Compensation: Any person or entity that has suffered harm as a result of a SLAPP will be able to claim and obtain full compensation for the harm.

• Penalities: Courts would have the possibility to impose effective, proportionate and dissuasive penalties on the claimants who brought the SLAPP proceedings.

• Protection against third-country judgments: 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. The defendant should also be allowed to claim compensation of the damages and the costs in the Member State of domicile.

Areas that can be improved

It is important that the proposed Directive as put foward by the Commission is not diluted during the legislative process. However, it is equally important to highlight ways in which the current draft can be improved in order to guarantee effective protection against SLAPPs where the need really arises.

In this regard, the need for a cross-border element to be present in order for the Directive to be applicable, ignores the reality on the ground that many of the SLAPP cases are domestic in nature and would fall outside the scope of the draft.

The draft Directive distinguishes between those SLAPPs that are manifestly unfounded and those that are abusive. In relation to manifestly unfounded court proceedings early dismissal of court proceedings is an available tool that can be used by the defendant. However, when it comes to abusive court proceedings only remedies such as the apportionment of costs to the abusive claimant, compensation of damages and penalties are available. In this regard, seeing the high threshold that needs to be met to file a manifestly unfounded claim, in all probability only a very small number of cases would be eligible for an early dismissal. This would result in individuals and entities anyway facing a dissuasive and heavy cost for clearly abusive suits that are not manifestly unfounded. Early dismissal should be available to all types of SLAPP cases.

Other supportive actions that can be taken

Together with the approval and implementation at Member State level of the model directive, it is important that the Commission call on Members states to ensure that national laws criminalising speech, such as libel and slander, are brought in line with international human rights standards. Furthermore, the Commission should encourage discussion on legal ethics and professional standards for lawyers and legal professionals.

Importantly, targets of SLAPPs should be provided with assistance, support and protection as is afforded to victims of crime, in that they should have access to free legal aid, support services and protective measures against further intimidation and retaliation.