Anti-SLAPP Directive: CASE statement on the political agreement
On 30 November 2023, the Council and Parliament of the EU reached an agreement on a proposed anti-SLAPP directive. The press releases and informal information we have received about the final text indicate that the final version includes several positive developments that represent a win for the years-long advocacy efforts of CASE and its members. The anti-SLAPP Directive of the EU will set new rules to protect those targeted with strategic lawsuits against public participation (SLAPP), such as journalists, rights defenders or civil society organisations.
CASE is encouraged to learn that the EU negotiators deflected some of the attempts of the EU Council to dilute key safeguards. We remain determined to see robust measures to protect public watchdogs against abusive lawsuits, forming the tenets of the first EU-wide anti-SLAPP law. We hope that the new rules will become a trailblazing example for countries also beyond the EU.
When Daphne Caruana Galizia was brutally assassinated in 2017, several civil society organisations embarked on a journey to ensure that the unfathomable vilification that happened to Daphne who was facing 48 abusive lawsuits at the time of her murder, would not repeat itself. Our advocacy, research and awareness-raising campaigns contributed to building recognition of the malicious character and dire impact of SLAPPs and pronounced the need to put forward robust measures to tackle them.
Years of advocacy have borne significant fruit. In April 2022, the European Commission introduced an anti-SLAPP initiative, which included the core recommendations we had advocated for such as an early dismissal mechanism and compensation of damages. We contributed to a policy brief that fleshed out the strengths and weaknesses of the unveiled proposal as well as priorities for potential amendments.
To pass into law, the proposed directive by the Commission had to be approved by the other two key institutions of the EU: the European Parliament and the European Council. The general approach the European Council agreed on in June 2023 heavily watered down the EC proposal which already set the minimum benchmark for anti-SLAPP legislation. CASE and its members have subsequently sounded the alarm through advocacy meetings at national and international level and through campaigning – that a robust anti-SLAPP Directive must encompass: an early dismissal mechanism for all SLAPPs; a broad notion of cross-border cases and compensation of damages.
By enabling national courts to dismiss SLAPPs in an accelerated procedure early in proceedings, the text of the EU Directive as approved on 30 November 2023 promises to contain these guarantees. It also contains a broad concept of SLAPPs on matters with cross-border implications and it aims to deter potential claimants from engaging in such practices. Where it falls short is in deferring excessively to member states and relying on ambiguous language in relation to certain key safeguards and remedies: it will, for example, be for member states to decide whether compensation will be available to public watchdogs, or to flesh out the threshold test used to dismiss SLAPPs.
CASE therefore emphasises that, while these measures constitute an important and positive step forward, they should be considered the minimum standards needed to protect public watchdogs against SLAPPs. CASE will therefore be monitoring transposition closely in line with the standards we have previously articulated – and, we hope, in line with a Council of Europe recommendation on SLAPPs, due to be discussed in Strasbourg next month.
This Directive (also referred to as ‘Daphne’s law’) is to be implemented by the EU Member States and it forms a package together with the Commission’s horizontal Recommendation on anti-SLAPP, which was adopted in April 2022. It’s a historic moment that will determine further efforts to counter abusive litigation at national level. We once again express appreciation for Věra Jourová, European Commission Vice-President for Values and Transparency and Tiemo Wölken MEP and rapporteur for their incessant dedication to see an ambitious EU-wide anti-SLAPP framework materialise. We await the final text for detailed analysis and comments. CASE commits to continue its work to see the essential protections effectively being enacted in Member States.