EU institutions strike deal on Anti-SLAPP Directive

EU co-legislators agreed on the directive to address the growing number of strategic lawsuits against public participation (SLAPPs) and protect defendants from unfounded, abusive litigation on matters of public interest.

SLAPPs – abusive lawsuits filed with the main purpose of harassing and draining the resources of a target, such as a journalist or rights watchdog – are an increasing phenomenon in Europe, with over 160 suits filed in 2022.

Following negotiations into the early hours of Thursday morning (30 November), the EU Council and Parliament agreed on the new directive to provide EU-level protections for targets of abusive lawsuits.

“Despite strong divergences between the Council and the Parliament’s position, we managed to ensure that this directive goes beyond mere procedural aspects and duly reflects the broader impact and context of these cases,” the Parliament’s rapporteur for the directive, social democrat Tiemo Wölken, told journalists on Thursday.

The final agreement maintains much of the Parliament’s text, including key provisions such as a broad definition of a ‘cross-border’ case, early dismissal mechanisms, and awards of costs and damages.

“I believe that there is still important work to be done. But we did a very important step last night. So I hope that last night can be considered as a positive milestone in the defence of our values as a union,” Wölken said.

Cross-border definition maintained

One of the main divergences between the Parliament’s and Council’s texts was the definition of a ‘cross border’ case, a prerequisite for a lawsuit to fall under EU competencies and for the directive’s protections to apply.

The compromise text issued by the Swedish presidency of the EU Council in June proposed a narrow understanding of what constitutes ‘cross-border’, which faced strong pushback from advocacy groups as it would drastically limit the scope of the directive’s application.

The Parliament’s negotiators, however, managed to secure a broader definition that considers cases as cross-border unless both parties are domiciled in the same country as the court, and the case is relevant only to one member state.

According to Wölken, this definition “will allow the national judges to assess the elements of a particular case in a flexible and comprehensive manner, including as to the means used to access or disseminate an act of public participation, such as, for example, electronic means.”

Early dismissal of unfounded cases

Another element strongly argued for by advocacy groups was a mechanism for early dismissal that places the burden of proof on claimants, which was upheld. Defendants will be able to apply for the early dismissal of cases against them, and the initiator of the SLAPP must be able to prove it is well founded.

Courts will be expected to deal swiftly with such applications.

Financial security provisions

The Parliament also secured the inclusion of an article on the award of costs, stipulating that defendants should be reimbursed on “all types of costs they have incurred in regards to the legal defence and representation”, Wölken said.

“We also secured a strong article on penalties and other appropriate, effective, proportionate and dissuasive measures like the publication of the court decision,” he added.

The agreement also includes the possibility to seek compensation for damages and costs incurred in connection with proceedings in a third country.

EU countries must ensure that judgments of unfounded or abusive proceedings from non-European countries against a person or organisation domiciled in their jurisdiction will not be recognised.

Moreover, the targets of SLAPP cases should be able to claim compensation for related costs and damages in their domestic court.

Forum shopping

‘Forum shopping’ is a process whereby someone initiates or attempts to move a lawsuit to a jurisdiction with high costs and a low burden of proof for claimants. This aspect has also been a central concern of both advocacy groups and the rapporteur.

“For this, we had included a separate chapter on private international law, namely Brussels I and Rome II, creating a lex specialis for SLAPP cases,” Wölken said. This provision was not included in the agreement due to legal considerations.

“We now have a clear and written declaration from the European Commission committing to swiftly finalising its review process of the Brussels I and Rome II regulations to address the problem of forum shopping in the context of SLAPPs,” he said.

Additional support measures

The agreement also includes two articles on accompanying measures regarding assistance, information transparency and data collection.

“This toolkit of support measures will be of tangible benefit for SLAPP targets,” Wölken said. “This includes making existing legal and financial aid and psychological support available through a single contact point at national level for the ones suffering cases.”

The deal also ensured the participation of third parties such as trade unions, NGOs and other parties with legitimate interests to support defendants throughout proceedings.

Next steps

Once formally approved in plenary and member states, the legislation will enter into force 20 days after its publication in the Official Journal. Member states will have two years to transpose the legislation into national law.

Advocacy groups, including the Coalition Against SLAPPs in Europe (CASE) and the Daphne Caruana Galizia Foundation, welcomed the news of the deal.

“We are grateful to [Commission Vice President] Vera Jourova for her initiative and welcome the news of an agreement on the draft anti-SLAPP directive. together w/CASECoalition, we look forward to analysing the final text of the directive,” they wrote on X.

The directive has been dubbed “Daphne’s Law” as it was initiated after the 2017 assassination of Caruana Galizia in Malta, who was facing over 40 such lawsuits at the time of her death.

The cases were mainly from politicians and businesspeople she was investigating, with many of the suits inherited by her grieving family.

[Edited by Luca Bertuzzi/Alice Taylor]

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