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Initiative against abusive litigation targeting journalists and rights defenders

In “A New Push for European Democracy”

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The European Parliament has consistently called on the Commission to propose and apply various policies, procedures and mechanisms to safeguard media pluralism and protect journalists, including against abusive lawsuits aiming to silence them. On 27 April 2022, the European Commission put forward a proposal to adopt a Directive on SLAPPs on the basis of Article 81(2)(f) of the Treaty on the Functioning of the European Union. The proposed Directive would provide safeguards against manifestly unfounded or abusive court proceedings initiated against anyway exercising his/her freedom of expression and information in relation to matters of public interest (e.g. journalists, human rights defenders, researchers, etc). It would only apply to matters of civil and commercial nature - not to criminal or administrative matters- with cross-border implications (not purely domestic situations, as defined by the proposal).

oceedings against public participation could be ordered to bear all the costs of the proceedings.
- Those who have suffered harm as a result of an abusive court proceedings against public participation would be able to claim and to obtain full compensation for that harm.
- Courts seised of abusive proceedings against public participation would have the possibility to impose penalties on the party who brought those proceedings.

Within Parliament, the proposal is dealt with by the Legal Affairs (JURI) Committee as lead committee, with the Civil Liberties, Justice and Home Affairs (LIBE) Committee associated under Rule 57 RoP.

The JURI rapporteur presented his draft report on 2 March 2023. Proposed amendments include specifying the definition of abusive court proceedings and matters of public interests, extending the the scope of application  by providing a broader definition of matters with cross-border implications. It seeks to oblige Member States to provide victims of SLAPPs with access to support measures, including comprehensive information, legal aid and financial assistance, and to ensure full coverage of the costs of legal representation in cases of abusive lawsuits against public participation. The draft report also proposes to create a public Union register including all relevant SLAPP cases dealt by EU jurisdictions. It also proposes to modify the Brussels I Regulation, making the domicile of the defendant the sole forum in defamation cases in which the victim is a private person, and to modify the Rome II Regulation, in order to ensure that the law applicable to SLAPP cases is the law of the place to which the publication was directed to. 

In the Council, the Justice and Home Affairs configuration is in charge of the proposal and the first policy debate took place on 9 December 2022. Member States generally showed their agreement with the main goal pursued by the proposal, but they also flagged that the procedural safeguards incorporated therein should not be abused and that the claimant's access to justice should be ensured. The European Economic and Social Committee issued an Opinion on the proposal on 26 October 2022.

A total of 281 amendments were tabled by Members, and are yet to be voted in committee. An indicative date for a plenary debate on the file has been indicated for 10 July 2023. 

The LIBE committee delivered its opinion on 23 May 2023. It proposed a number of amendments, including:

  • to specify the scope of the directive by clearly indicating human rights, environmental, women's and LGBTIQ+ rights defenders, as well as civil society organizations, NGOs, activists, trade unions, artists, researchers, academics, bloggers, whistleblowers or political
  • to specify that the directive provides for minimum harmonixation only, and its implementation may not reduce the level of safeguards existing in national law
  • to expand the definition of public participation by clearly indicating areas of such participation as covering  freedom of association and assembly, freedom of press, academic and artistic freedom, freedom of science and culture, the right of collective bargaining and action, the right to an effective remedy or the right to good administration
  • to clarify that all forms of activity are covered, including any activity regardless of the nature, medium or format, which serves the exercise of public scrutiny, disclosure, dissemination or promotion of information to the public, any forms of creation, exhibition, advertisement or other promotion of journalistic, political, scientific, academic, artistic, commentary or satirical communications, publications or works, as well as any supporting or preparatory activities, in particular the work of media organisations, such as the provision by natural or legal persons, either on a professional or personal basis, of support to another person for purposes directly linked to public participation on a matter of public interest
  • to include allegations of embezzlement, money laundering, extortion, coercion, sexual harassment and gender based violence, or other forms of intimidation, or any other criminal or administrative offence including environmental crime; 
  • to include activities aimed at protecting EU Values (Article 2 TEU)
  • to clarify the definition of 'abusive court proceedings against public participation' as those abusive court proceedings against public participation’ mean court proceedings brought in relation to public participation that make use of the judicial process for purposes other than genuinely asserting, vindicating or exercising a right and have as their main purpose to prevent, restrict or penalize public participation; the definition would be accompanied by concrete examples 
  • to empower courts to dismiss abusive court proceedings, without having to prove that they are manifestly unfounded
  • to inclde a rule whereby the defendant may apply for a dismissal at any stage of the proceedings, including - where national civil procedural law systems foresee a separate admissibility stage - also at that stage 

References:

Further Reading:

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Author: Rafał Mańko, Members' Research Service, legislative-train@europarl.europa.eu

As of 20/05/2023.