Press freedom organisations have expressed concern following the adoption by the Council of the European Union of a common position (general approach) on the so-called Anti-SLAPP Directive.
The directive, which aims to combat Strategic Lawsuits Against Public Participation (SLAPPs), was first proposed by the European Commission last year. On Friday, EU ministers at the Justice and Home Affairs Council in Luxembourg expressed broad support for the Council’s version of the text.
On the same day the text was adopted, the European Federation of Journalists (EFJ) issued a statement that said the text “falls far short of the legislation’s original objective: to protect journalists and the right to information in the European Union” adding that “the Council fails to promise an effective and adequate framework to end the rise of SLAPPs”.
Commenting on the Council’s text, EFJ General Secretary Ricardo Gutiérrez said, “It is far too restrictive to have a meaningful impact. Let’s be clear: very few cases fall within the scope of what the Council is proposing. Once again, Member States’ public commitments are not being translated into concrete action when it comes to providing a favourable environment for journalists and media outlets.”
The @EUCouncil's position doesn't provide an effective and adequate response to the #SLAPP phenomenon that is developing in 🇪🇺: it is far too restrictive to have any meaningful impact. This is by no means "a decisive step" to strengthen FoE or protect journalists. @CASECoalition https://t.co/xtL5Qewx8t
— EFJ (@EFJEUROPE) June 9, 2023
SLAPPs are lawsuits designed to censor, intimidate and silence journalists or critics by burdening them with exorbitant legal fees and lengthy proceedings with no intention of winning. Often filed in jurisdictions different from that of the plaintiff or target, with lower standards of free speech or media protection and higher costs, the use of SLAPPs in Europe has increased in recent years.
The Commission’s original proposal focused on cases with “cross-border implications”. This label applies to all cases where the parties involved are based in different countries and where public participation is considered a matter of public interest in more than one Member State.
However, the Council’s version of the text intends to limit the directive’s scope to purely “cross-border” cases, i.e., where the prosecution occurs in another EU Member State.
The Council’s proposal also weakens the early dismissal mechanism with a restrictive definition of “manifestly unfounded cases” and by ruling out the possibility of appealing decisions refusing early dismissal. The provision on damage compensation in favour of SLAPP targets was also deleted from the Council’s text.
In a tweet, Article 19 Europe Director Sarah Clarke wrote that the law designed in memory of Daphne Caruana Galizia, in its current form, “would not protect her from the SLAPPs she faced”. She added, “The general approach agreed by governments on EU anti-SLAPP directive is a failure to support the adoption of robust safeguards against SLAPPs in the EU.”
— Sarah Clarke (@Sarah_M_Clarke) June 9, 2023
At Friday’s Council meeting, Justice Commissioner Didier Reynders also regretted what he described as the dilution of certain aspects of the Commission’s text, in particular, the deletion of the provision on damages and the weakening of the provisions on the award of costs.
And in comments that run counter to the Maltese government’s overall attitude towards legislative reforms to protect journalists, Justice Minister Jonathan Attard said that Malta would have preferred more ambition in the Council’s scope and compensation for damages.
Meanwhile, in Malta, the government’s proposed amendments to protect authors, editors and publishers from SLAPP are also considered restrictive by legal experts and international organisations whose advice has so far been ignored by the Maltese authorities.