The anti-SLAPP Directive has legal effect
Demonstrations, blockades, and climate actions have increased over the past years. As companies are prone to be targeted by these actions, sometimes as a response, legal proceedings against ‘activists’ have been initiated. However, litigation against, for example journalists, NGOs and human rights defenders could effectively silence them. To prevent this, the European Parliament and the Council of the European Union recently adopted the anti-SLAPP Directive.
The anti-SLAPP Directive forces Member States to fast-track anti-SLAPP proceedings and to enable courts to order that the company pays the NGO’s litigation costs. The Directive was published in the Official Journal on 16 April 2024 and took legal effect on the 6 May. Member States will have two years to implement it into their national laws.
Strategic lawsuits against public participation
SLAPP stands for Strategic lawsuits against public participation. In the recitals of the anti-SLAPP Directive, a SLAPP is defined as a civil action brought by a company against a natural or legal person that defends the public interest. It is initiated specifically because of the target’s public participation. This ‘public participation’ may include expressing opinions, protesting, disclosing certain facts and data, or initiating a public interest action. According to the recitals of the Directive, a defining feature of SLAPP lawsuits is that the legal proceedings are used strategically. The main objective might not be to win the case, but to discourage public participation, possibly even using harassment and intimidation tactics. The recitals further state that SLAPP proceedings frequently exploit an imbalance of power between the parties.
The purpose of the directive
The anti-SLAPP directive is based on Article 81(2)(f) of the Treaty on the Functioning of the European Union, which provides that the European Union shall develop judicial cooperation in civil matters with cross-border implications, by eliminating the obstacles to the proper functioning of civil proceedings. With the anti-SLAPP Directive, the European legislature aims to eliminate such obstacles by introducing a number of procedural safeguards and measures to prevent SLAPP lawsuits. The purpose of the Directive is to protect natural and legal persons who engage in public participation on matters of public interest, including journalists, publishers, media organisations, whistleblowers, human rights defenders, NGOs, trade unions, artists, researchers and academics.
According to the recitals of the Directive, the procedural safeguards are necessary to maintain and develop the European Union as an area of freedom, security and justice. The Directive aims to protect fundamental EU rights, such as the right to participate in democratic life, and the rights to respect for private and family life, freedom of expression and information, freedom of assembly and association and to effective remedy and fair trial.
Procedural safeguards
The safeguards and measures in the anti-SLAPP Directive aim to protect persons who engage in public participation from manifestly unfounded claims or abusive court proceedings in civil cases with cross-border implications. The Directive provides that persons targeted in SLAPP cases can ask the court to dismiss evidently unfounded claims at the earliest possible stage in accordance with national law. If the proceedings are found to be unlawful, the court may decide that the claimant should bear all types of costs of the proceedings that can be awarded under national law, including the costs of legal representation incurred by the SLAPP victim. Where national law does not guarantee the full award of the costs of legal representation, Member States have to ensure that such costs are fully covered by other means available under national law.
To ensure that the defendant will be compensated, the court may also order the claimant to provide financial security for the estimated costs of the proceedings and, if provided for under national law, for damages suffered by the defendant. The court may furthermore decide to impose sanctions or other equally effective measures on the claimant to discourage abusive legal actions. Courts must accelerate their decisions on early dismissal of a case and on the provision of financial security. In that regard, Member States may set time limits for holding hearings or for the court to take a decision.
The anti-SLAPP Directive lays down minimum rules, allowing the Member States to adopt or maintain provisions that provide a higher level of protection for persons engaged in public participation. The implementation of the Directive cannot justify a regression of the level of protection that already exists in the Member States, and should be without prejudice to the protection provided by other instruments of EU law.
Conclusion
The anti-SLAPP Directive aims to make it less attractive for companies to strategically litigate in order to discourage public participation. Now that the Directive has taken legal effect, it is up to the Member States to implement it into their national laws. In Stibbe’s view, the Directive can be easily implemented into Dutch law, but additional legislation will be required to do so. A proposal for a public consultation is expected to be put on the internet first, allowing parties to provide input and contribute to a higher quality of legislation.
This blog is an initiative of Stibbe's pro bono committee. For more information about Stibbe’s pro bono program, see https://www.stibbe.com/csr/pro-bono.
The authors would like to thank Roos Gomes for her help in writing this blog.
