Weekend Edition Nº144

Fighting Fire with Fire: the Proposal against SLAPP (Strategic Litigation against Public Participation)

In April 2022, the European Commission proposed a Directive on protecting persons who are facing strategic lawsuits because of their public participation (2). e concept of strategic lawsuits against public participation (or SLAPP) has been established in the United States of America, where the litigation costs can be extremely high even for the winning defendant. In the continental legal system, the losing party pays the bill, but still: reimbursement takes place with a signicant delay, as lawsuits can drag on for several years Beyond the costs, a lawsuitbringsseveralothersocialandpersonaldisadvantagesthatmaypotentiallyintimidatethedefendantandsuppressdissentinmaersofpublicimportance AnotherspecicburdeniswhenthelegalactionisinitiatedinanotherState.

e European policy action was triggered by one particularly shocking case, which became a symbol of the initiative: investigative journalist Daphne Caruana Galizia was repeatedly sued, threatened, and nally murdered by a bomb being placed in her car in 2017. At the time of her death, she was threatened with 42 civil and ve criminal defamation lawsuits, several of them in a foreign State Her bank accounts were frozen and she spent the majority of her time with her lawyers or turning up for siings, before her death. ose who sued her were politiciansandinuentialbusinessmen,bankowners–subjectsofherjournalisticrevelations

When researchers started to investigate the status of SLAPP across the EU, they found that in different forms, strategic litigation to suppress public dissent was prevalent in several Member States of the European Union, even if the name 'SLAPP' was not applied. Legal instruments have become a sophisticated way to limit freedom of expression – much beer, of course, than physical aacks against journalists (3). ey have been applied not merely against journalists and activists, but also academics and even judges (4) Legal threats did not need to reach the court in order to exercise pressure (5). It was also found that the European Member States each possessed a large number of practices and legal protective tools against abusive litigation, but they were divergent acrossstates,andnotutilisedtotheirfullpotential.

1. Judit Bayer PhD. habil. is a Senior Research Fellow at the Institute for Information, Telecommunication and Media Law ahe University of Münster and associateprofessorattheBudapestEconomicUniversity,DepartmentforCommunication.

2. of the European Parliament and of the Council on protecting persons who engage in public participation from manifestly unfounded Proposal for a Directive orabusivecourtproceedings(’Strategiclawsuitsagainstpublicparticipation’)Brussels,27.4.2022COM(2022)177nal. (SLAPPDirectiveProposal).

3.Findstatisticsonaacksonjournalists .here

4.LaurentPech, ,Verfassungsblog,20July2021. ProtectingPolishJudgesfromPolitical Control

5.TobiasGostomzyk/DanielMoßbrucker,’ ’OBS 2019,chapter5. WennSiedasschreiben,verklageichSie!

Researchers also faced the difficulties of distinction between SLAPP and legitimate claims for the protection of privacy, of good reputation or of the private property (6) For the lack of an established denition, civil activists sometimesfalselyinterpretedlegalproceduresasabusive.

Whatismeantbyabuseoflaw?

With SLAPP are meant cases where the claim that is brought to the court is just a façade, with the actual hidden intentions to silence public criticism is would be an abuse of law e legal concept of abuse of rights has a longhistoryandis anchoredincaselaw.AlreadytheFrenchDeclarationofFundamentalRightsestablishedthat those who exercise their rights are ’responsible for the abuse of that freedom which the law determines’ e European Charter of Fundamental Rights denes the concept of abuse of rights in its Article 54. All major international conventions dene abuse of rights as a ground for denying human rights protection So does Article 17 of the European Convention on Human Rights, Article 30 of the Universal Declaration of Human Rights, Article 5 1 of the International Covenant of Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights. From this angle, SLAPP is an abuse of the right of litigation, because its real goal is to suppress freedom of expression More broadly, SLAPP is an abuse of the tool of law, because law is used for something other than its original purpose, namely the protection of rights. e prohibition of abuse must be distinguished from legitimate restrictions of rights Exercise of rights can be disadvantegeous to others, this must be accepted to a certain extent. All individuals enjoy the same rights to express their critical views and to protect theirreputation Whenconictingrightsclash,thecourtwillexercisebalancinginordertodecidethecase

6.DeutscheWelle, ,DeutscheWelle,26September,2020. Germanclimateactivistsoccupycoalmine

Strategic litigation to suppress public dissent is prevalent in several Member States of the European Union, even if the name 'SLAPP' is not applied

We can call a litigation abusive when: (i) the plaintiff knew from the beginning that his case is unjust; and (ii) when the statement oractionthatissuedisanactofpublicparticipation

In sum, a SLAPP denition consists of two parts: strategic litigation, and public participation. Strategic litigation is not illegal per se, it is a tool also used by advocacy organisations to promote the public interest. e problem arises only when it is used to protect aprivateinterestinoppositiontothepublicinterest,andinanabusive manner. ere are legitimate cases when private interest prevails over public interest: but seeking judicial protection of private interest should always be genuine, and not strategic, that is, not having a hidden agenda, or an element of revenge Such a use would be contrary to the original purpose of litigation, and thereby weaponise the law and the courts SLAPPers are mainly interested in the process itself rather than in the outcome of the case. e goal of distracting or intimidating the parties is oen achieved by making the court process expensive and time-consuming (7) Such futile cases aim at exhausting the defendant's resources inthebroadsense:time,nancialassets,andnerves.

We can call a litigation abusive when: (i) the plaintiff knew from the beginning that his case is unjust; and (ii) when the statement or action that is sued is an act of public participation

WhatexactlyisSLAPPundertheproposeddirective?

e proposal aims to protect journalists and human rights defenders against abusive litigation that has a chilling effect on their public participation, by proposing various procedural instruments for civil and commercial procedures. e proposal does not apply to criminal or administrative maers, and it only applies to cases with cross-border implications. However, in our globally interconnected world, crossboarder must be understood generously: if a case is relevant to more than one Member State, – for example, because it is related to climate activism –, it has cross-border implications (8) Being international is almost becoming a rule. Nevertheless, local cases happen to be quite relevant for SLAPPs When a local potentate (e g , mayor) sues a local journalist for her criticism, the mutual dependencies due to the local intimacy can increase the chilling effect. e European Parliament's Juri Commiee's Report on amendments would extend the effect of

Such futile cases aim at exhausting the defendant's resources in the broad sense: time, nancial assets, and nerves

theDirectivetocaseswheretheactofpublicparticipationisaccessibleviaelectronicmeansorotherwise,inmore than one Member State. is rule would acknowledge the high level of interconnectedness in the global world and especially within the European Union, where a local demonstration can be streamed per video to otherMemberStates,andthusbesubjecttotheprotectionoftheDirective(9).

e EP Report on amendments would extend the notion of 'public participation' to assembly rights, and to artistic, satirical works as well, including preparatory activities directly linked thereto, and to petitions, boycos, orspeakingoutagainstorcommentingonmisuseorabuseofpower(10).

emainanti-SLAPPtoolsintheDirective

First, the Directive provides for a few procedural guarantees that should be enacted by the Member States (11). ese should be applicable in any case when a litigation is initiated against an action that constitutes public participation, without examining whether the litigation is legitimate or abusive. e most straightforward tool is that briefs amicii should be allowed to be submied during the procedure. is allows third parties to intervene, however, only in favour of the defendant, oder through providing further information Introduction of this widely used instrument carries practically no risk, provided that there is agreement what constitutes an advantage forthedefendant(12) Counter-interestedthink-tanks(orpseudo-think-tanks,orGONGOs)mayabusethisrule to reach the opposite effect. And, as known: the road to hell is paved with good intentions. erefore, it is suggestedtoallowinterventionsonlywiththedefendant'sapproval.

Further, courts should be allowed to demand a deposit, to ensure that the procedural costs and eventual damages can be covered at the end of the procedure. is shis the temporary nancial burden carried with the litigation to the plaintiff' s side e courts, as in all instances of the anti-SLAPP directive, only have rights, and no limitshowtheyexercisethistool(13).

e Directive would further limit the effects of amendment of the claim subsequent the commencement of the proceedure Even if the claimant would initiate the discontinuation of the proceedings, the court would still be abletoimposetheconsequencesofabusiveproceeding,ifitthinkst(14).

Finally, the defendants should be able to initiate an early dismissal if the claim is manifestly unfounded, or remedies, if the claim is abusive Denition and the circumstances of establishing these two cases take the entire Chapters III and IV of the Directive. ese are the main anti-SLAPP tools that also complete each other: one of them is used at the very beginning of the procedure, before the trial is started in merit; the other during or at the

9. ,CommieeonLegalAffairs,(JURI)2.3.2023,2022/0117(COD)(Hereaer:EPReport)Amendment36,Article (2)a

EPJURICommieeDraReport

10.32,Article 3(1)2.ea)EPReport.

11.Articles5-8,SLAPPDirectiveProposal.

12.Article 7,SLAPPDirectiveProposal.

13.Article 8,SLAPPDirectiveProposal.

14.Article 6,SLAPPDirectiveProposal.

15.Article 5,SLAPPDirectiveProposal.

end of the procedure, when it unfolded at a later stage that the claim was abusive (15). e Proposal suggested that Member States may empower their courts to employ these tools ex officio is may lead to different mechanisms in Member States, and the EP Report reasonably suggests that Member States have no option in thisrespect:courtsmustbeempoweredandthedecisionisuptothejudge(16)

Below,Iwilldiscussthesetwotoolsinmoredetail.

Earlydismissal

Similarlytotheanglo-saxon'Anti-SLAPPmotion',anapplicationmaybesubmied–withinatimelimit–toinitiate the dismissal of the claim for a lawsuit, arguing that it aims against public participation and is manifestly unfounded. In case such an application was submied, the main proceeding should be stayed to take a nal decision on this maer, in an accelerated procedure. e application may refer to the entire claim or part of it. One crucial advantage of such a motion is the reversed burden of proof: the plaintiff should prove that his claim is not manifestly unfounded. Obviously, the courts must weigh the known circumstances, the right to a fair trial, and to an effective remedy Furthermore, both parties may appeal against the decision, whether it granted or refused earlydismissal.

Abusivecourtproceedings

e concept of abusive proceeding is dened among the denitions of the Directive, and Chapter IV provides for remedies if abusiveness is established by the court An abusive lawsuit is one that is at least partially unfounded, and has a hidden main purpose: to prevent, silence or take revenge because of public participation. As it is not possible to get direct information about the hidden intentions of a person, the court should read the following signs: a disproportionate, excessive claim, such as an extremely high compensation claim; or an unreasonable demand; existence of multiple proceedings, especially if in several states, initiated by either the plaintiff or its associatedpartiessuchasrelatedcompaniesorpoliticalpartycomrades;andextra-legalharassmentorthreatsby the plaintiff or its representatives. e EP Report would complete the list with the political assymetry (17); the use of procedural tactics, and a history of threats of legal action used by the claimant. Finally, by denition, abusivecourtproceedingsmustbedirectedagainstpublicparticipation.

If the court established that a claim was abusive, a full award of bearing the costs can be ordered (18). While normally the losing party bears the procedural costs anyway, there are certain costs that are not usually covered, in particular legal costs that incurred by the defendant. e legal estimates of such costs are oen below the real costs,ortheircoveragecanbeinitiatedonlywithaverylowthresholdofincome(19).

16.Amendment37,Article 5(3).EPReport.

17. Newca) of Article exploitation of economic advantage andpolitical inuence bythe claimantagainstthe defendant, leading to animbalance of powerbetween thetwoparties.

18.Article 14.SLAPPDirectiveProposal.

19. Judit Bayer - Petra Bárd - Lina Vosyliute - Chun Luk, Strategic Law suits Against Public Participation (SLAPP) in the European Union. A comparative study EU-CITZEN: AcademicNetworkOnEuropeanCitizenshipRights,2021,ISBN978-92-846-8312-3|doi:10.2861/305.

Second, a full compensation for the harm caused by the abusive court proceeding shall be awarded (20). e relating literature knows non-material damages in this respect for the lost time and emotional stress experienced because of the litigation (21). ird, the courts should be able to impose penalties for the abusive court proceedings (22). It is up to the Member States to dene, in which cases a judge should impose such a penalty; however, the level of protection cannot be lower than in the directive, and a systematic divergence across the Member States should beavoided.

Internationaljudgements

e Directive should not derogate the 2007 Lugano Convention(23),whichgovernsjurisdictionandtherecognitionandenforcement of judgments in civil and commercial maers between EU Member States and Iceland, Norway and Switzerland. However, third country judgments which would have been consideredasmanifestlyunfoundedorabusiveinEU,shallnotbegivenrecognitionandenforcementwithintheEU.

eRecommendation

e proposal was accompanied by a Recommendation. First, the Recommendation promotes an immediately application for Member States to respect the framework of the Directive even before it steps into force. Further, it demands that Member Statesincludesimilarsafeguardsintheirnationallawsforpurelydomestic procedures as well, without the cross-border effect. Beyond this, it recommends further measures that fall outside the European competence, most importantly, it warmly recommends decriminalisation of defamation or as a minimum, to remove prison sentences for defamation. is would be also in linewiththerecommendationsoftheCouncilofEurope.

20.Article 15.SLAPPDirectiveProposal.

21. Judit Bayer - Petra Bárd - Lina Vosyliute - Chun Luk, . Strategic Law suits Against Public Participation (SLAPP) in the European Union. A comparative study EU-CITZEN: AcademicNetworkOnEuropeanCitizenshipRights,2021,ISBN978-92-846-8312-3|doi:10.2861/305.p 81.

22.Article 16.SLAPPDirectiveProposal.

23. Lugano Convention 2007, Convention on Jurisdiction and the Recognition and Enforcementof Judgmentsin Civil and Commercial Maers, Doneat Luganoon30October2007.

e court should read the following signs: a disproportionate, excessive claim; existence of multiple proceedings, and extra-legal harassment or threats

UpgradingtheRecommendation?

e EP Report proposed to include a large part of the Recommendation into the main text of the Directive. In particular, this would enrich the Directive with the systemic measures that apply to create a safer judicial system for civil society is would include, inter alia, the deontological rules of the legal profession, as well as that selfregulatory bodies and associations of legal professionals should discourage lawyers from providing help for SLAPP cases. Further, it requires that Member States introduce proactive awareness raising, and provide training for practicioners (24). Nevertheless, the Recommendation is broader in regard of the support mechanisms, describing in more detail the ways that support and guidance can be provided to victims of SLAPP, such as pro bonodefence,sharingofinformation,ornancialsupport(25).

One of the most important parts of the Recommendation is the requirement to collect data on unfounded or abusive court proceedings systematically, and general proceedings classied by relevant data, such as defendant and plaintiff types, amount of initial damages, acts of public participation, length of the proceedings, crossborder elements, and costs of the proceedings. e EP Amendment would require that Member states establish suchapubliclyaccessibleregisterofrelevantcourtdecisionsandtheEUwouldmaintainadatabaseofthese(26).

24.ewArticles18f,18h,EPReport.

25.Recommendation 24-27versusnewArticle 18iofEPReport.

26.NewArticles16aand18e,EPReport.

Implementationandpracticaladaptation

e Directive is still to be passed, and then Member States should implement it within two years from the date of entry into force. e Commission should review the Directive within ve years aer transposition, and submit a report to the European Parliament and the Council. e Directive has been based on Article 81(2)(f) of the Treaty on the Functioning of the European Union (TFEU), which is the legal basis for judicial cooperationincivilmaershavingacross-borderdimension(27)

Conclusion

e scope of the Directive may be narrow, however, it is likely to have a spillover effect into domestic legal maers. Journalists and other SLAPP-targets will have their back by this legal instrument. Even if courts will eventually not be entitled to use the anti-SLAPP tools in domestic proceedings, an awareness of all participants will be raised to this problem area. Moreover, with to the official and transparent data delivered by Member States, (including domestic cases), we will have more information in a coupleofyearsforevaluation.

e scope of the Directive may be narrow, however, it is likely to have a spillover effect into domestic legal maers

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