In the face of rising strategic lawsuits aiming to stifle public participation, the EU has taken a landmark step by agreeing on its first-ever law to protect individuals from SLAPPs (Strategic Lawsuits Against Public Participation). This groundbreaking directive, named “Daphne’s Law” after journalist Daphne Caruana Galizia, seeks to safeguard freedom of expression and democracy in the EU, but has it got what it takes to stand up to legal bullies?
Margarida Martins and Ruby Silk report.
Picture this: You find out a company is dumping toxic waste into a nearby river. You write a letter to your local newspaper about it, as you believe people should know. Soon after it is published, you get a menacing legal letter in the mail with threats of unaffordable fines for reputational damage to the company. Before you know it, you find yourself in court.
For many environmental and human rights defenders, journalists and watchdogs, this is a frightening reality. Abusive litigation routinely forms the basis of a malicious claim aimed at silencing critical voices and disincentivising public participation. Fortunately, the EU has agreed on its very first law to protect those who speak up from “SLAPPs”, or “strategic lawsuits against public participation.” But what exactly are SLAPPs, and will this law have what it takes to stop them?
Sueing to silence
Strategic lawsuits against public participation (SLAPPs) are an abusive legal strategy designed to stifle individuals advocating for the public interest. Targets of SLAPPs, including whistle-blowers exposing powerful individuals, lobby groups, corporations, and government bodies, are menaced with the burden of defending themselves in expensive and drawn-out court battles. Usually, closer examination reveals the baseless or exaggerated nature of these legal actions.
It is important to note that SLAPPs are not initiated with a goal of winning the legal proceedings or seeking redress. Instead, their aim is to intimidate defendants and deplete their financial and emotional resources. This misuse of the justice system inflicts harm not only on the immediate victims but also extends its impact to their families and communities.
The number of SLAPP cases recorded annually in Europe. Source: 2023 CASE report
Worryingly, SLAPPs are on the rise in the EU. A report produced by CASE (a coalition of NGOs and legal experts of which the EEB is part) has identified a total of 570 SLAPPs in Europe since 2010, with over 160 suits filed in 2022.
Still unsure of what constitutes a SLAPP? Check out the CASE coalition’s clever campaign action:
EU SLAPPs back
Recognising the harm SLAPPs posed to freedom of expression and, more broadly, democracy in Europe, in early 2022 the Commission proposed an Anti-SLAPPs Directive. Following lengthy negotiations (and with more than a little guidance from civil society and senior diplomats, including the UN Special Rapporteur on Environment Defenders), EU lawmakers have finally agreed on the contents of the new law, just in time for the new year. The result? A mixed bag.
The Good
‘Cross-border’ cases
To benefit from this new EU protection, SLAPP victims would have to demonstrate that the case brought against them has cross-border implications.The EU Council was pushing for a narrow understanding of a ‘cross-border’ case that would only cover cases where the claimant and defendant are based in different Member States. This would have been useless to the majority of SLAPP targets in Europe, which occur within one single Member State.
In the end, the text includes a broader definition that considers all 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. This last condition is an important caveat: most SLAPP cases concern either issues which are of a general public interest in many Member States, or they involve online activity that is not restricted to one Member State. This means judges will have plenty of leeway in considering whether cases qualify.
Early dismissal
Another crucial component of this Directive is the mechanism for an early dismissal of SLAPP cases. This mechanism places the burden of proof on the claimant, so it will be on the initiator of the SLAPP case – and not on its victim – to prove it is well founded. The fact that this is so often not the case means this mechanism should act as an effective deterrent!
Costs and damages
The text of the Directive includes a provision stipulating that defendants should be reimbursed for all types of costs they have incurred for the legal defence and representation. Thanks, Parliament! We hope that will make legal bullies think twice. That and the other dissuasive provisions, such as the publication of the court decision, because the shame should be on the bullies, not on the SLAPP targets.
Reference to environmental defenders
Environmental defenders are a category of human rights’ defenders with a legal status already defined, for example, in the Aarhus Convention, and very often bear the ire of politicians, businesspeople and public officials whose environmentally harmful conduct they denounce and call attention to. The agreed-upon text makes reference to the important role of environmental rights defenders in defending the public interest and being crucial to European democracies.
The Bad
Third-party participation
The deal also ensured the participation of third parties such as NGOs, trade unions and other parties with legitimate interests to support defendants in the proceedings, which is very important to support SLAPP targets. However, the final text of the agreement only allows this in accordance with the criteria laid down by each Member State’s national law, which is more restrictive than the initial Commission proposal for the Directive.
Forum-shopping
Forum-shopping is the phenomenon whereby claimants choose the most favourable jurisdiction (low burden of proof) for their case, and most unfavourable (high cost) for a potential SLAPP target. The agreed-upon text of the Anti-SLAPP Directive fails to address the issue of forum-shopping properly, leaving space for legal bullies to pick and choose the jurisdiction that suits them best in bad faith. While the Parliament pushed to reinforce the already existing EU safeguards against this practice with regards to SLAPPs, it was not part of the final agreement.
Compensation
A person facing a SLAPP should have the right to receive compensation for the harm caused by the abusive lawsuit. Making the claimant pay for damages can also discourage legal bullying, but it’s important to prioritise the target’s right to compensation. Unfortunately, the final agreement severely limited the obligation of Member States to ensure SLAPP targets access to compensation. It reduced compensation into a possible deterrent, subject to each court’s discretion, rather than a guaranteed right for SLAPP targets.
SLAPPing back or swatting at air?
The Anti-SLAPP Directive introduces a new set of mechanisms into EU law that can help protect targets of abusive lawsuits across all Member States. While the level of protection afforded by this Directive in practice remains to be seen, it is undoubtedly a positive development towards addressing what is a huge encroachment on human and democratic rights.
The Directive has been named “Daphne’s Law” by Commission Vice President Vera Jourova, as it was initiated after the 2017 assassination of journalist Daphne Caruana Galizia in Malta, who was facing over 40 lawsuits (mainly from politicians and businesspeople) at the time of her death. Many of these lawsuits were inherited by her grieving family.
