Initiative against abusive litigation targeting journalists and rights defenders
In “A New Push for European Democracy”
Responding to repeated calls from the Parliament, in April 2022, the Commission put forward a proposal for a directive on abusive litigation targeting journalists and rights defenders, based on Article 81(2)(f) of the Treaty on the Functioning of the European Union. The scope of the proposal is limited to cross-border civil 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 European Economic and Social Committee issued an opinion on the proposal on 26 October 2022.
The JURI rapporteur presented his draft report on 2 March 2023, followed by an opinion of the LIBE committee on 23 May 2023. On 27 June 2023, the JURI committee adopted its report on the proposal.
Following a policy debate in December 2022, on 9 June 2023, the Council (Justice and Home Affairs) approved a General Approach (GA) which became the basis for trilogue negotiations with Parliament. The main changes in the GA in comparison to the text of the proposal include:
- a minimum harmonisation clause, allowing for higher level of protection
- modified definition of abusive court proceedings
- removal of definition of cross-border cases
- rule providing that application for early dismissal is treated in an accelerated manner in accordance with national law, taking into account the circumstances of the case and the right to an effective remedy and the right to a fair trial
- removal of rule on damages
- provision that the Directive shall not affect the application of bilateral and multilateral conventions and agreements between a third State and the Union or a Member State concluded before the date of entry into force of this Directive.
On 10 July 2023 a plenary debate took place in Parliament. Following that, on 11 July 2023 Parliament adopted its amendments to the Commission proposal and referred the file back to the committee responsible, under Rule 59(4), for interinstitutional negotiations.
The main amendments include the following:
- inclusion of a minimum harmonisation clause,
- clarifying the definition of ‘public participation’
- broadeing the definition of 'matters of public interest'
- requiring Member States should ensure that natural or legal persons engaging in public participation have access to support measures, including information, advice, legal aid, legal counselling, financial assistance, psychological assistance,
- providing that the court seized should have the power to require the claimant to provide security for costs of the proceedings, including the full costs of legal representation incurred by the defendant and damages, if it considers such security appropriate,
- a natural or legal person who has suffered harm as a result of a SLAPP should be able to claim and to obtain full compensation for that harm, covering material or non-material harm, without the need to initiate separate court proceedings to that end,
- laying down rules on private international law, whereby in defamation claims or other claims based on civil or commercial law which may constitute a claim under the directive, the domicile of the defendant should be considered to be the sole forum, having due regard to cases where the victims of defamation are natural persons. In claims regarding a publication as an act of public participation, the applicable law should be considered to be the law of the place to which that publication is directed,
- providing for a ‘one-stop shop’ with legal and psychological support for SLAPP victims
- requiring Member States to recommend including the topic of SLAPPs in legal training, to cooperate between themslelves in combating SLAPPs, and to establish a publicly accessible national register of court rulings on SLAPPs which would then feed into an EU-wide register run by the Commission.
On 29 November 2023, the co-legislators reached a compromise on the proposal for a directive concerning the protection of journalists and human rights defenders from abusive civil proceedings (known as the anti-SLAPP directive). The Committee of Permanent Representatives accepted the compromise text on 18 December 2023, and the Committee on Legal Affairs (JURI), which is responsible for the file in Parliament, voted on approving the finalised compromise text on 24 January 2024.
In particular, the compromise text provides for the following:
- a broad definition of cross-border cases according to which a case is considered to be cross-border unless it is shown that both parties are domiciled in the same Member State and all other relevant elements are connected to that country;
- a broad definition of "matters of public interest," including, for instance, EU values, as proposed by Parliament;
- an explicit rule on the burden of proof which makes it clear that the claimant, and not the defendant, must prove facts they raise before the court;
- a compromise version of the rule on reimbursement of costs incurred by the SLAPP victim, according to which if national law does not guarantee the award in full of the costs of legal representation beyond statutory fee tables, Member States will have to ensure that such costs are fully covered, unless they are excessive;
- following Parliament’s request, Member States will have to provide information for SLAPP victims, as well as to publish judgments of highest courts in SLAPP cases in an electronic format.
The item is expected to be voted in plenary in the week of 26 February 2024.
- 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, Draft report on the 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”), 2 March 2023.
- 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.
- Final compromise text, agreed upon by JURI and COREPER
- 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: Rafał Mańko, Members' Research Service, firstname.lastname@example.org