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 will be 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 as "proceedings brought
in relation to public participation that have as their main purpose the prevention,
restriction or penalisation of public participation and are which pursue unfounded
- removal of definition of cross-border cases
- new rule requiring that Member States must ensure that an 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 (and not only the Lugano Convention).
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,
- redefining the directive's scope to include matters of a civil or commercial nature having cross-border implications, including interim and precautionary measures, counteractions or other particular types of remedies available under other instruments, whatever the nature of the court or tribunal,
- clarifying the definition of ‘public participation’ to mean any statement or activity by a natural or legal person expressed or carried out in the exercise of the right to freedom of expression and information, academic freedom, or freedom of assembly and association on a matter of public interest,
- defining 'matters of public interest' as those that affect the public in areas such as: fundamental rights, including gender equality, media freedom and consumer and labour rights, as well as public health, safety, the environment or climate; activities of a person or entity in the public eye or of public interest, including governmental officials and private entities; allegations of corruption, fraud, 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; activities aimed to protect the values enshrined in Article 2 TEU, the principle of non-interference in democratic processes, and to provide or facilitate public access to information with a view to fighting disinformation; academic, scientific, research and artistic activities,
- 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’ comprising dedicated national networks of specialised lawyers, legal practitioners and psychologists, which targets of SLAPPs can contact, and through which they can receive guidance and easy access to information on, and protection against SLAPPs, including regarding legal aid, financial and psychological support,
- requiring Member States to recommend including the topic of SLAPPs in legal training,
- requiring Member States to cooperate between themslelves in combating SLAPPs,
- requiring the Member States 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.
- 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.
- 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