European Commission presents directive to tackle abusive lawsuits against journalists, NGOs

In a 2022 report, the Coalition Against SLAPPs in Europe documented 539 verified instances of these suits having been filed between 2010 and 2021. [Shutterstock / Jorm S]

The European Commission published its long-awaited anti-SLAPPs directive on Wednesday (27 April), legislation aimed at combating the rising use of abusive lawsuits designed to silence journalists and activists.

The Directive focuses on cases with “cross-border implications”, setting out a number of legal safeguards to reduce the prevalence of these suits, and is accompanied by a recommendation to member states on steps they should take to enact equivalent measures on domestic cases. 

SLAPPs – or Strategic Lawsuits Against Public Participation – are manifestly unfounded or abusive court proceedings launched against journalists, NGOs or activists with the aim of silencing them or preventing them from continuing their work. 

Often backed by powerful figures such as government officials or business leaders, the legal proceedings are designed to be lengthy and costly, sapping their targets of energy and funds, even if, as is often the case, they are ultimately legally unsuccessful. 

“This is a historical development”, said Flutura Kusari, legal advisor at the European Centre for Press and Media Freedom. “SLAPPs destroy careers. Today is the first step in creating serious obstacles to those hoping to use SLAPPs to censor journalists and to hide the truth.” 

EU Parliament to counter lawsuits designed to silence journalists, NGOs

The European Parliament’s committees dealing with legal affairs (JURI), civil liberties and home affairs (LIBE) met on Tuesday (11 May) to prepare a report on combating lawsuits aimed at intimidating journalists and civil society organisations in the EU.

Increasing attention has been paid to the use of SLAPPs in Europe in recent years, particularly since the 2017 assassination of Maltese investigative journalist Daphne Caruana Galizia, who was facing almost 50 such suits at the time of her death. 

In a 2022 report, CASE, the Coalition Against SLAPPs in Europe, documented 539 verified instances of these suits having been filed between 2010 and 2021, though they note that this data is not exhaustive. Their use has also been growing each year; 118 cases were recorded in 2021 alone, the highest number so far. 

Commission launches recommendation on safety of journalists

European Commission Vice President for Values and Transparency Věra Jourová presented on Thursday (16 September) a Recommendation on the Safety of Journalists, urging EU countries to address security concerns in an environment increasingly hostile towards the media.

Legislative proposal

The Commission’s proposal covers SLAPPs that are deemed to have “cross-border implications”, which the EU executive says by their nature add an extra layer of complexity and cost. Cases will be considered to have these implications unless both parties are domiciled in the same member state as the court in which the suit is filed. 

For the directive, cases can also be classed as having cross-border implications under certain other circumstances, including where the particular act of public participation concerned is a matter of public interest relevant to more than one member state. 

Also noted in the directive is the fact that the nature of online media’s accessibility irrespective of borders opens the door to “forum shopping” or “libel tourism”, whereby those launching cases seek out jurisdictions that might be more friendly to their suits in which to launch them. 

The Commission proposed a number of safeguards, which Values and Transparency Commissioner Vera Jourová, speaking at a press conference on Wednesday (27 April), described as having been “designed with the aim of nipping SLAPPs in the bud, neutralising their effect.”

Among them are measures to facilitate the early dismissal of cases identified as abusive or unfounded, as well as provide adequate compensation for those targeted and penalties and deterrents for claimants. 

Recommendation 

While the Directive covers cases with cross-border implications, the Commission notes that many instances of SLAPPs are domestic and lack these transnational impacts. 

Therefore, the EU executive issued a recommendation alongside the directive, setting out steps that governments could take in order to enact similar protections at the national level. 

The Commission also urges governments to ensure that their penalties for defamation – the most frequent grounds on which SLAPPs are filed, according to CASE – are not excessive, encouraging, in particular, the removal of prison sentences for those found guilty and the treatment of these cases under civil or administrative, rather than criminal, law. 

The Commission also suggests that member states offer training to people working in the judiciary, media workers and human rights defenders, to help them to better identify when a case might be classed as abusive. 

Three states – Ireland, Malta and Lithuania – have already begun exploring introducing domestic legislation covering SLAPPs, Jourová added. 

According to CASE data, just 11% of the SLAPPs they identified were strictly cross-border cases. Media and civil rights groups have warned that without the implementation of equivalent measures at the national level, the directive’s impact might fall short. 

“The Commission’s proposed directive is an important step forward”, said Julie Majerczak, Reporters Without Borders’ (RSF) representative to the EU. “However, the proposed directive applies only to cases having a cross-border impact, which unfortunately limits its scope significantly.”

“To ensure real protection for journalists across the EU, it is essential that the member states apply the same procedural safeguards to national cases, as recommended by the Commission,” she said.

Press freedom alerts increase 41% in 2021, says Council of Europe

The number of press freedom alerts amongst Council of Europe (CoE) member states soared by 41% during 2021 and should be a wake-up call for Europe, according to their newly released annual report.

[Edited by Luca Bertuzzi and Benjamin Fox]

Subscribe to our newsletters

Subscribe