The EU Anti-SLAPP Directive – Betrayal of an Idea?
By Satyajit Sarna
In a square at the heart of old Valletta lies a sombre monument commemorating Malta’s heroic defence against a sixteenth-century Ottoman invasion. At the foot of the bronze statues, however, sits a much newer makeshift memorial, composed of photos and printouts and covered in flowers. It commemorates the life of investigative journalist Daphne Caruana Galizia, who was assassinated by a car bomb in 2017. Prior to her death, she had extensively covered corruption in Malta, in both the government and opposition, notably in connection with the disclosures contained in the Panama Papers.
The European Commission was spurred by the assassination of Daphne Caruana Galizia, as well as calls from a slew of organizations representing journalists, activists, authors, and human rights defenders, to consider framing legislation against SLAPPs (Strategic Lawsuits Against Public Participation). Broadly speaking, SLAPPs are lawsuits or other legal actions which are filed with the primary motive of intimidating and harassing journalists and activists and thereby stifling criticism of claimants, who are often politically influential and economically powerful, including major corporations. Most frequently, they are framed as defamation suits or actions against the invasion of privacy. Notably, at the time of her assassination, Daphne Caruana Galizia was facing around 50 suits and proceedings across a slew of jurisdictions.
The difficulty with framing any kind of regulation on the subject is that it involves a clash between competing rights and interests. In terms of the European Convention on Human Rights (ECHR), the conflict lies between rights under Article 10 (freedom of expression) on one hand and those under Article 6 (right to a fair trial) on the other; or in terms of the Charter of Fundamental Rights of the EU (CFR), between Article 11 and Article 47. Substantively, the rights sought to be protected frequently have their roots in Article 8 of the ECHR (Article 7 of the CFR) rights, including rights of privacy. On one hand, the right to freedom of expression and publication is enjoyed by journalists, activists, bloggers, social media users and human rights defenders. These actors serve a valuable function as watchdogs and critics in democratic societies. The public also has an interest in being informed by a range of sources, which is framed in the ECHR as a passive right to receive information. On the other hand, not all suits are abusive, and all persons enjoy the right of access to justice and to a fair trial and consideration of their claim.
The via media between the two sets of interests lies in the promulgation of procedural reforms which help diagnose when suits or other proceedings are abusive and offer a defendant a set of accessible remedies. Civil procedure differs vastly across the member states of the EU and national standards vary, for example on the issue of costs. It is notable that none of the EU’s member states have specific domestic anti-SLAPP legislation. Legislation to combat SLAPPs is in vogue in certain states of the United States of America, but not at a federal level. Canadian and Australian anti-SLAPP legislation in key provinces has developed a significant body of law.
The Nature of SLAPPs
The problem with SLAPPs is that they leverage essential features and principles of civil and criminal law in a way that the party instituting the proceedings benefits from the existence and pendency of the proceeding. For example, the principle that a plaintiff as a “dominus litus” can define the scope of the claim and the level of damages sought may be exploited by parties with financial resources to create huge potential exposures on the part of the defendant. Even though the claim is unlikely to be granted, the effect it has on a marginally funded Defendant or other similarly situated persons is intimidatory. Another major principle which can be employed cynically to devastating effect is that the jurisdiction for a defamation claim can be established anywhere the offending publication is accessible, which principle has found endorsement in CJEU caselaw (See Gtflix TV v. DR C-251/20). In our internet age, that opens up the potential for an action to be filed in one of many jurisdictions and potentially in multiple jurisdictions, almost entirely to be determined by the claimant. A claimant is naturally incentivized to choose a jurisdiction which has a historical tendency to award a higher level of damages, or which has higher standards of protection for reputation rights. Defence expenses can also vary dramatically across legal systems, and almost nowhere is it “affordable” to defend against multiple litigations. The ability of a claimant to pick a jurisdiction under the Brussels Ia Regulation and Rome II Regulation of the EU (governing conflicts of law) leads directly to “forum shopping”, and civil society recommendations have raised the idea of amending the regulations accordingly.
The cumulative result is to create a chilling effect on the freedom of expression, ensuring that any journalistic or activist investigation or publication is at the least very guarded about the extent of its criticism and cognizant of the litigiousness or financial might of the subject. Often, unfair settlements are arrived at simply because Defendants would be unable to bear the costs of defence over the life of the proceedings.
The difficulty is that when it comes to many important topics of public discourse, “smoking gun” evidence is rare to find, and even whistleblowers who come forward are reluctant to be named, for the fear of consequences and reprisals. The bona fide publication of facts or issues which show a powerful enterprise in poor light can therefore often be subject to defamation suits. If the prima facie test is whether a reader would think less of a person or enterprise after reading the offending publication, then most critical journalism would meet that standard. The burden of proof of the defences (truth or fair comment or any form of privilege) rests on the defendant. However, in the meanwhile, the very pendency of the suit, with its concomitant burdens of stress, travel, and mounting expenses, begins to drain the defendant.
The key question which a court or any outside observer must necessarily engage with is whether a particular action is instituted in bona fide pursuit of the claimant’s rights or with the intention of pressurizing, intimidating, or silencing an attempt at expression, criticism or public participation. That intention would by nature be difficult to draw from the language of the claim itself – but rather would be drawn from context, from the manner in which reliefs are sought, the choice of jurisdiction and timing of any action, and the proportionality of damages sought.
Defamation suits are the most common kind of SLAPP proceeding, but increasingly, privacy actions and GDPR complaints have also been instrumentalized in the same way. CASE’s study shows a rise in these actions. Defamation law is also not exclusively civil in nature and all but six member states of the EU still preserve criminal defamation laws, which opens up the potential for private prosecution, despite findings of the European Court of Human Rights that criminal penalties are disproportionate and incompatible with Article 10 of the ECHR (De Carolis and France Televisions v. France 29313/10 dated 21 January 2016). As criminal prosecutions are often more severe and have consequences for personal liberty, the possibility of abuse is even more alarming.
Original Draft Directive
Pursuant to a resolution of the European Parliament of November 2021, the European Commission published a proposed draft directive in April 2022. This, the “Original Draft”, focused on setting out a minimal framework, restricts itself to those cases which had a cross-border element. In restricting itself to that scope, the Commission also allayed a fundamental concern of legitimacy – the EU can after all only set out law in pursuance of its fundamental treaties, and the Directive is rooted in Article 81(2)(f) of the Treaty for the Functioning of the European Union. As a consequence, the proposal is limited to civil and commercial cases, and explicitly excludes criminal proceedings as beyond its competence.
The broad principles of the proposal were as follows:
- Cross-border implications: The directive would apply to cases with cross border implications. At its simplest, this concerns cases where the parties are in different states, for example, where the defendant is located in a different country from the plaintiff. However, the Commission’s proposal also contemplated cases with “a cross-border significance”, which could be interpreted to include issues of general European importance or even interest (Article 4). The open nature of this definition led to a great deal of interest.
- Definition of abusive litigation: By nature a contested definition – the original draft’s language (Art. 3(3)) contemplated the discernment of a main intention of preventing, restricting or penalizing public participation (through factors such as disproportionate nature of a claim, the multiplicity of proceedings, or instances of intimidation, harassment or threats), and the characterization of claim as partially or wholly unfounded.
- Early dismissal of abusive claims: One of the key weapons against SLAPPs is the early dismissal of a manifestly unfounded cases (Art. 9). While many national systems would already provide for such “strikeout” mechanisms in their civil procedure, the mandatory creation of a minimum European standard in such regard would be very important. SLAPPs often achieve their ends by wearing a defendant down in terms of time, effort and finances, and a record of early dismissals would be likely to discourage abusive litigation. Critically, the burden of proof to prove that a claim is not manifestly unfounded would rest on the Claimant (Art. 12).
- Security, compensation and penalties: To similarly discourage plaintiffs with deep pockets and unfounded cases, the original draft contains a set of provisions with financial implications for SLAPPs which are dismissed. At the outset, where elements of an abusive litigation can be found, a security for procedural costs (Art. 8); and where proceedings are dismissed with a finding that they are instituted abusively – the imposition of significant penalties (Art. 16) as well as compensation to the defendant (Art. 15).
- Third Party Intervention: In questions of public participation, the intervention of third parties, typically NGOs which may be armed with data or information which could be relevant in determining facts. In the ordinary conception of a civil proceeding, for example a defamation suit, a third party ordinarily has no place. There are of course contexts (such as under the Aarhus Convention) where a third party has an entry point into a litigation, but even there, national standards tend to be restrictive. The original draft here proposed in Art. 7 that third-party interventions be made permissible in questions of public participation.
- Third-country judgments: The proposal also provided (Art. 17) that the recognition and enforcement of third-country judgments would be refused if such a proceeding would have been dismissed as manifestly unfounded or abusive if it had been brought in the member state. This highlights the implication of a higher minimum common standard for the EU, and would possibly have global repercussions.
The Revised Compromise Draft
The Original Draft created a large amount of interest, with civil society involved in the field and organizations representing journalists lauding it as a major positive step to cut down on the abuse of process, especially in countries where significant numbers of proceedings are filed annually.
However, some Member States raised concerns about the Commission’s proposal, including that it did not adequately comply with the subsidiarity principle, and after consultations, the Commission under the Swedish Presidency released a second draft on 2 March 2023. A line by line analysis is a longer albeit rewarding exercise, but some key features of the Revised Draft merit the majority of our attention.
As a whole, the language of the Revised Draft focuses on balancing the protection an Anti SLAPP Directive would provide with other rights and responsibilities (see Recital 36a). This in and of itself would be welcome, as the end-result would have to be one which is compatible with both EU and ECHR Law as a whole.
However, some of the revisions which shape the Revised Draft raise major concerns:
- Cross-border implications: The Revised Draft, through deletions, has reduced that application of the term “cross-border” to its simplest meaning, i.e. where the parties are domiciled in different Member States, or where the tribunal is domiciled in a different Member State from either party. The amplified sense of the Commission’s proposal – which included the sense of cross border importance, has been nullified.
- Manifestly Unfounded: The words “manifestly unfounded” have been supplied with a definition, which is “a claim which is so obviously unfounded that there is no scope for any reasonable doubt”. As this is the trigger on which the definition of “abusive litigation” depends, the main relief of early dismissal becomes unlikely. Almost no professionally built case is likely to be so shoddy as to not meet this very low standard, and as such the most promising remedy available under the Commission’s proposal becomes effectively unworkable. However, where the lower standard of elements showing an abuse of procedure are met, a security against procedural costs or the possibility of penalties continues. Comparatively however, the dissuasive value against filing a SLAPP of such financial consequences is lower. The objective of the SLAPP would likely have been met.
- Burden of Proof: The language of Art. 12, which earlier had cast the burden of proof that the claim was not manifestly unfounded upon the Claimant appears to have been loosened to require the Claimant merely to substantiate the claim in order to allow the court to determine whether it is manifestly unfounded. As ‘manifestly unfounded’ has been elevated to a significantly higher standard than the earlier definition allowed for, any presentation of a basis for the case, regardless of its sustainability or merit, would be sufficient to meet the new standard and prevent an early dismissal.
- Appeal against early dismissal: While the Original Draft allowed for any decision allowing or rejecting an early dismissal claim to be appealed, the Revised Draft only allows for an appeal from the grant of an early dismissal. Therefore, the Defendant is relegated to the full length of the proceeding if the early dismissal is not granted at the first instance.
- Intervention by third parties: The potential of third parties entering an otherwise private litigation seems to have been curtailed. The right of NGOs to intervene has been subordinated to the national law. Therefore, it no longer acts as a common minimum standard – merely as a reiteration of rights that already exist at various levels.
- Award of Costs: Similarly, the award of costs has been subordinated to national standards and lowered from the Commission’s proposal ’s “full costs of legal representation incurred by the defendant”. Therefore, as national standards on costs will control the provision, no material change from the status-quo takes place.
- Compensation of damages: Art. 15, which provided for courts to be vested with the power to order compensation for damages suffered as a consequence of an abusive court proceeding, has been deleted in its entirety.
- As Art. 5 controls the provisions concerning security, early dismissal and other remedies, the insertion of the phrase “in accordance with national law” subordinates the protections of the proposal to existing national standards.
- As a whole, the Revised Draft no longer sets a common minimum standard but instead has a broad protective effect where member states agree to a set of procedural principles.
The Revised Draft’s March Towards Law
Since the revised draft was published, it has attracted significant criticism from journalists bodies and civil society for being a “watered-down version” which weakens many the protections offered by the Commission’s proposal. The overwhelming impression is that the promise of the proposal has effectively been betrayed. It is hard to disagree with this assessment, when the drafts are compared side by side. As a counter-reading, it could be said that the Commission’s proposal was highly ambitious, and Member States naturally find interference into broader procedural laws to be invasive and over-reaching, even in the form of a directive. Fundamentally, the principle in EU Law is that directives are secondary law, and they only have an “indirect effect” instead of the “direct effect” that Regulations have. Under Article 288 of the TFEU, the implementation of a directive in national law is left to the discretion of the member state, but if the state fails to implement it fully, it would only give an affected person a right against the state, but not the ability to use it horizontally in a proceeding against it. As a consequence, a defendant would not in its defence against a claimant be able to rely on the directive – only on national procedural law which may be amended or interpreted to meet the standard of the directive.
However, from the point of view of effect, when one reviews the aims of the resolution passed by Parliament in November 2021 to create dramatic protection against SLAPPs, the revised draft falls clearly short of expectations. On balance, it bolsters national law defences and can be a useful normative tool for a defendant. But it is not real relief against the threat of a SLAPP or the damage it would cause.
However, it does seem to have met with the requisite level of approval from member states and their representations. On 9 June 2023, the EU Council of Ministers expressed its broad support for the revised draft, amid some significant dissenting voices. A plenary debate on the directive is expected around mid-July 2023. If the less rigorous revised draft is adopted, the EU will have taken a step forward towards protecting journalists, activists, publishers, and human rights defenders. But it will be a small step, and will have less of an effect than is necessary in the present climate.
About the author
Satyajit Sarna is a practising lawyer with over a decade of experience of appearing before the courts in India in a wide range of matters. He has extensive first-hand experience defending against SLAPPs in courts in India, as part of a media law focused practice. He has defended publishers, writers, newspapers and journalists against large businesses, motivated government actions and powerful private organizations. He graduated from the National Law School of India University, Bangalore, India and holds an Advanced LLM in European and International Human Rights Law from Leiden University in the Netherlands. He is also a widely published writer.
Satyajit Sarna, The EU Anti-SLAPP Directive – Betrayal of an Idea?, in: TRAFO – Blog for Transregional Research, 04.07.2023, https://trafo.hypotheses.org/47794