Strategic Lawsuits Against Public Participation (SLAPPs) cast a long shadow over free speech and public interest advocacy as a form of lawfare. While disguised as legitimate legal claims, SLAPPs are often used to silence critics and impede public discourse on important issues. Over time legal countermeasures have also been developed, called “SLAPP-back” laws in those US jurisdictions where this problem first originated. This post looks at the European landscape in this realm.

The European Union’s Anti-SLAPP Directive, ostensibly intended to shield public participation from abusive lawsuits, has drawn criticism from legal circles. The idea finds its roots in Article 81 of the Treaty on the Functioning of the European Union (TFEU). While the aim of protecting free speech is laudable, this article argues that the directive’s flaws could have unintended consequences for, paradoxically, robust public discourse.

The Achilles’ Heel – Defining „Public Interest”

The directive hinges on the concept of “public interest speech”, offering protection to those engaging in public debate on such matters. However, the definition remains frustratingly vague. It creates a potential loophole. Encompassing expression on “a matter of public interest” (Article 4(2)), it offers a broad and ambiguous standard. This ambiguity could be exploited by powerful entities. Corporations or politicians could argue that criticism directed at them falls outside the scope of “public interest,” enabling them to launch lawsuits stifling legitimate public debate on issues like environmental concerns or corporate malfeasance.

Chilling Effect on Investigative Journalism

Investigative journalism thrives on holding power to account. SLAPP lawsuits, even those ultimately dismissed, can be used as a tool to silence journalists by draining their resources and fostering a climate of fear. The broad scope of the directive could make it easier for corporations and politicians to dismiss critical lawsuits as outside the realm of “public interest”, hindering investigative journalism and the public’s right to know.

Absence of Transparency

The directive has received criticism for the legislative process’s current lack of openness. Among other things, the public consultation process was insufficient, especially in terms of including stakeholders and civil society organizations who were directly impacted by SLAPP litigation. This reduced the chance to hear and take into account other viewpoints and possible issues. The Commission has also come under fire for not being transparent enough about the legislative procedure. This lack of transparency prevents knowledgeable public discussion and supervision.

Penalties for Lawsuit Filing

According to the directive, member states must make sure that courts that identify a case as an abusive legal action intended to stifle public discussion have the ability to penalize the party bringing the case in a way that is reasonable, effective, and deterrent. This brings up two points. First off, the specific member state’s court will decide how much of this punishment is imposed, therefore this penalty might differ greatly based on the jurisdiction that is selected. Furthermore, as determining “having the possibility” implies, the court will have the option to decide whether to impose such a penalty. Considering that judges will have a great deal of discretion in designating a particular litigation as a SLAPP, this may cause some worry.

Requirement for Security Deposit

In cases where the court acknowledges the case as an abusive legal action, member states have to ensure that the claimant is obligated to provide security for the costs of the proceedings, including procedural costs and damages if the court determines that such security is appropriate provided the presence of elements indicating that the legal proceedings qualify an act of abuse.

Prof. Ireneusz Kunicki pointed out in his remarks on the regulation that the requirement to offer security for litigation costs or damages could actually make it more difficult to pursue rights that have already been violated. He correctly noted that many people might be discouraged from bringing a lawsuit to defend their personal rights if the court were to impose an obligation to deposit money—even tens of thousands of zlotys—as security. Although the professor points out that the defender may be the only one to require this security, it is difficult to predict that the defender won’t make such a request.

A Patchwork of Implementation – A Weakened Directive?

The directive sets a framework, but individual member states have the responsibility of implementing it. This raises concerns about inconsistent application. Without clear guidelines for interpreting “public interest”, courts across the EU might interpret the directive differently, creating a patchwork of legal protections for public discourse. What is more, the directive’s lack of transparency in the legislative process has been criticized. The public consultation process was criticized for being inadequate, particularly with regard to the participation of civil society organizations and stakeholders who were directly impacted by SLAPP suits. This made it harder to hear and think about different points of view and potential issues. Additionally, the Commission has been criticized for a lack of transparency in the legislative process. Because of this lack of transparency, informed public debate and oversight are hampered.

Recommendation CM/Rec (2024)2 – Clarifying How to Counter SLAPPs in Europe – or Not Really?

On April 5, 2024, the Committee of Ministers of the Council of Europe adopted Recommendation CM/Rec (2024)2 on countering the use of SLAPPs. This recommendation aims to bolster protection for those engaging in public interest activities across Europe. The recommendation provides guidance to Council of Europe member states on how to develop legal frameworks to counter SLAPPs. Firstly, the recommendation recognizes a wide range of activities as “public participation”, encompassing journalists, activists, whistleblowers, and anyone contributing to public debate on matters of public interest. It aims to measure to deter SLAPPs. This includes empowering courts to require plaintiffs exhibiting signs of a SLAPP suit to post security for costs, potentially deterring frivolous lawsuits. What is more, the recommendation encourages procedures for swift dismissal of manifestly unfounded lawsuits, minimizing the burden on defendants.

The recommendation is not legally binding, and its effectiveness relies on individual member states enacting appropriate legislation. There’s no clear mechanism to ensure member states comply with the recommendations. The overall significance of the recommendation is generally questionable.

Conclusion – A SLAPP in the Face of Free Speech?

While well-intentioned, the EU’s Anti-SLAPP Directive presents a potential threat to robust public debate. The broad scope of protected speech and potential inconsistencies in implementation raise concerns. The directive’s ambiguous language and the risk of inconsistent implementation can be exploited by powerful actors to silence criticism. Instead of introducing regulations that leave much to be desired in terms of their overtones and clarity, it would seem that it would be more effective for the European Union to focus on implementing instruments that allow for true freedom of speech, which, after all, is so often emphasized within EU organizations and structures as a core value of a democratic society.

Julia Książek analyst at the International Law Center of the Ordo Iuris Institute for Legal Culture, lawyer, graduate of law at Jagiellonian University in Kraków, mainly interested in human rights, public international law, and military law. Fluent in Polish (native) and English, speaking also French and German.