Initiative against abusive litigation targeting journalists and rights defenders
In “A New Push for European Democracy”
Media freedom and pluralism are part of the rights and principles enshrined in the Charter of Fundamental Rights of the European Union (Art. 11) and in the European Convention on Human Rights (Art. 10). They are both a key pillar of democracy; one of the European Union founding values, according to Article 2 of the Treaty on the European Union. However, the 2020 and 2021 Rule of Law Reports published by the European Commission show that physical and online threats and attacks on journalists are on the rise in several Member States and that Europe is not free from severe attacks to media freedom and pluralism.
In this line, 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. In its Resolution on Media pluralism and media freedom in the European Union (3 May 2018), the Parliament invited the Commission to propose an anti-SLAPPs Directive (strategic lawsuit against public participation) that would protect independent media from vexatious lawsuits aimed at silencing or intimidating them; an invitation that has been reiterated by Parliament in later resolutions (e.g. Resolution on strengthening media freedom: the protection of journalists in Europe, hate speech, disinformation and the role of platforms, 25 November 2020). On 11 November 2021, the European Parliament adopted a resolution on SLAPPs, calling on the Commission to propose a package of both soft and hard law, including early dismissal mechanisms, to address the increasing number of SLAPPs against journalists, NGOs, academics and civil society within the Union. Proposed legislative measures should include general rules providing protection against SLAPPs and the proper functioning of the internal market, as well as rules in the areas of civil and criminal justice. The Parliament suggested as possible legal basis for those legislative measures Articles 81, 82 or 114 of the Treaty on the Functioning of the European Union. Proposed non-legislative actions include, adequate training for judges and legal practitioners on SLAPPs, a specific fund to provide financial support for the victims of SLAPPs, support for independent bodies dealing with complaints from those victims, a public register of relevant court decisions and a support hub victims of SLAPPs can access to receive guidance.
On 19 October 2020, the European Commission presented its 2021 work programme, which included as one of its priorities 'A New Push for European Democracy'. Under this priority, the Commission announced its intention to issue an initiative against abusive litigation targeting journalists and rights defenders, an intention that was reiterated in its European Democracy Action Plan (3 December 2020). 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 only applies 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). Among the main novelties the proposal would bring, the following can be highlighted:
- In court proceedings against public participation, the court seised would have the power to require the claimant to provide security for procedural costs and/or damages.
- Courts would have the power to adopt an early decision to dismiss, in full or in part, proceedings against public participation as manifestly unfounded if the defendant applies for early dismissal.
- A decision refusing or granting early dismissal must be subject to an appeal and, if the defendant applies for early dismissal, the claimant would have to prove that the claim is not manifestly unfounded.
- A claimant who has brought abusive court proceedings 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.
The proposed Directive was presented by the Commission together with a Recommendation setting out guidance for Member States to take effective measures to address SLAPPs. The Commission called on the Members States to ensure that their national laws were in line with the proposed EU rules for domestic cases against public participation and that their defamation rules did not have an unjustified impact on freedom of expression and public participation.
The proposed Directive entered the ordinary legislative procedure in the European Parliament and the Council. At the Parliament, the Legal Affairs (JURI) Committee has been appointed as the Committee responsible for the proposal, and the Civil Liberties, Justice and Home Affairs (LIBE) Committee is associated to the procedure under Rule 57 of Parliament's Rules of Procedure. Tiemo Wolken (S&D, Germany) was appointed as rapporteur for the proposal in the JURI Committee. 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 ensure the claimant's access to justice.
The European Economic and Social Committee issued an Opinion on the proposal on 26 October 2022.
- Legislative observatory: Protection of persons who engage in public participation from manifestly unfounded or abusive court proceedings (“Strategic lawsuits against public participation”), 2022/0117(COD).
- European Commission, Proposal for a Directive of the European Parliament and of the Council on protecting persons who engage in public participation from manifestly unfounded or abusive court proceedings (“Strategic lawsuits against public participation”), SWD(2022) 117 final
- European Commission, Recommendation on protecting journalists and human rights defenders who engage in public participation from manifestly unfounded or abusive court proceedings ("Strategic lawsuits against public participation"), SWD(2022) 117 final.
- European Commission, Recommendation on the protection, safety and empowerment of journalists, 16 September 2021, C(2021) 6650 final.
- European Parliament, Resolution of 11 November 2021 on strengthening democracy and media freedom and pluralism in the EU: the undue use of actions under civil and criminal law to silence journalists, NGOs and civil society, 2021/2036(INI)
- European Parliament, Resolution on strengthening media freedom: the protection of journalists in Europe, hate speech, disinformation and the role of platforms, 2020/2009(INI)
- European Parliament, Resolution of 3 May 2018 on Media pluralism and media freedom in the European Union, 2017/2209(INI)
- European Economic and Social Committee, Opinion on the Initiative against abusive litigation targeting journalists and rights defenders, SOC/734-EESC-2022.
- European Parliament, European Parliamentary Research Service, Strategic lawsuits against public participation (SLAPPs), September 2022.
- European Parliament, Policy Department for Citizens’ Rights and Constitutional Affairs, The Use of SLAPPs to Silence Journalists, NGOs and Civil Society, 2021.
- European Parliament, Policy Department for Citizens’ Rights and Constitutional Affairs, Safety of journalists and the fighting of corruption in the EU, July 2020.
- Eu-Citzen: Academic Network on European Citizenship Rights, SLAPP in the EU context, 29 May 2020.
- Centre for Media Pluralism and Media Freedom, Media pluralism monitor, 2020, 2021 and 2022.
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Author: Maria Diaz Crego, Members' Research Service, firstname.lastname@example.org