After the case of Daphne Caruana Galizia, the Maltese investigative journalist that was murdered in a car bomb, some European parliamentarians have been calling on the EU Commission to promote an anti-SLAPP EU directive which would give investigative journalists and media groups the power to request to rapidly dismiss “vexatious lawsuits” and would create a fund for the financial support of media groups resisting such lawsuits.
Following activities of the LIBE and JURI Committees, the European Parliament published its draft report on the strengthening democracy and media freedom and pluralism in the EU: the undue use of actions under civil and criminal law to silence journalists, NGOs and civil society (2021/2036(INI). THe report sets out several proposals that the European Parliament calls on the Commission to put forward:
1. A package of both soft law and hard law
Legislative measures - a package addressing SLAPPs should include proposals:
for general rules providing protection against SLAPPs;
specifically addressing questions of civil justice;
addressing in particular issues of criminal justice
Non-legislative measures - this package should further include:
adequate training of judges and legal practitioners on SLAPPs;
assessment of the interplay between different fields of law, such as national media laws and constitutional laws in this context;
the creation of a specific Union fund to provide financial support to victims of SLAPPs;
support for independent bodies (such as ombudspersons) able to deal with complaints from persons threatened or faced with SLAPP suits, and to provide assistance to them;
a publicly accessible Union register of relevant court decisions;
a ‘one-stop-shop’/support hub which victims of SLAPPs can contact and where they can receive guidance and easy access to information on SLAPPs, including regarding ‘first aid’, legal aid, financial and psychological support, including through peer exchange networks;
2. General rules
A proposal for a general protection measure would have the dual aim of protecting persons investigating or reporting:
(a) breaches of Union law;
(b) practices that threaten the proper functioning of the internal market.
The legislative measure should also provide rules on:
(a) confidentiality of investigations and reports, including of information sources;
(b) the prohibition of retaliation and effective penalties against SLAPP actions;
(c) support measures, including:
(i) effective assistance, information and practical advice and support provided by a ‘one-stop-shop’ for ‘first aid’ to SLAPP victims;
(ii) legal and financial aid;
(d) effective measures to protect against retaliation.
3. Civil procedure
A proposal for a civil procedure measure applicable in cross-border cases should include:
(a) the obligation for the claimant in cases concerning public participation to specify and provide means of proof of why the action is not abusive;
(b) the obligation for courts to summarily dismiss abusive lawsuits;
(c) the obligation for courts to consider the abusive element in any final decision;
(d) the possibility for third parties to intervene and subrogate to the defendant’s rights and obligations;
(e) the obligation for courts to consider the public interest when assessing costs and the award of damages;
(f) means to protect victims against SLAPPs brought outside the Union;
(f) the right to the full award of costs;
(g) the right to damages.
A proposal from the Commission following the review of private international law instruments should establish:
(a) the habitual residence of the defendant as the sole forum;
(b) that the applicable law is the law of the place where the investigation or reporting took place.
4. Criminal procedure
A legislative proposal regarding criminal law aspects of SLAPPs, should:
(a) specify that defamation, libel and slander constitute criminal offences in most Member States, and cannot be used for SLAPPs, in particular through private prosecution;
(b) specify that prosecution cannot be used to silence journalists, academics, civil society and NGOs;
(c) facilitate mutual recognition of judgements and judicial decisions, and police and judicial cooperation in criminal matters.
These measures should be complementary to current Commission activities, legislation already adopted and future initiatives.
Vera Jourova, Vice President of the European Commission for Values and Transparency, had already assured of the support of the European Commission for anti-SLAPPs legislation, and an official proposal is expected by the end of the year.