On 12 July, the European Parliament approved the text of a draft EU Directive on protecting persons who engage in public participation from manifestly unfounded or abusive court proceedings (“Strategic lawsuits against public participation”. The text is now in the process of discussion and reaching an agreement among the European Commission, the Parliament and the Council of the EU, and its finalization is envisaged to happen within the Spanish Presidency of the Council, ending on 31.12.2023.

Strategic lawsuits against public participation or “slap suits” are an increasingly common form of harassment and censorship used against journalists and human rights defenders in the EU.

What are strategic lawsuits against public participation?

  • Manifestly unfounded or unlawful lawsuits used as an increasingly widespread form of harassment and intimidation by influential individuals, lobby groups, corporations and government bodies against individuals and organizations that express criticism or convey messages uncomfortable to them on matters of public interest;
  • The purpose of these actions is not to exercise the right to access to justice and even win the case, but to censor and silence critics by burdening them with participation in lengthy legal proceedings, entailing serious costs for legal representation and adverse impact on their reputation so as to renounce their criticism and opposition;
  • These proceedings often result in a delay or complete suspension of the publication of information of public interest.;
  • The claims have a potential deterrent effect on journalists and human rights defenders to inform and defend their positions in the public interest under threat of retaliation.

What does the draft Directive envisage and why is its adoption important for the protection of the public interest, human rights, freedom of expression and media independence in the EU?

  • Provides a definition of “abusive court proceedings against public participation” – court proceedings brought in relation to public participation that are fully or partially unfounded and have as their main purpose to prevent, restrict or penalize public participation.
  • Regulates procedural safeguards for the protection of natural and legal persons engaged in public participation in matters of public interest, in particular journalists and human rights defenders, from civil and commercial judicial proceedings with cross-border implications, aimed at public participation, such as:
  • Security – the court or tribunal seised may require the claimant to provide security for procedural costs or procedural costs and damages if it considers such security appropriate in view of the existence of elements which are indicative of abusive court proceedings.
  • Early dismissal of manifestly unfounded court proceedings
  • Legal remedies against abusive court proceedings
  • Intervention of third parties – the court or tribunal, may consider that non-governmental organizations that protect or promote the rights of persons engaged in public participation may take part in these proceedings by supporting the defendant or providing information
  • The Directive provides for the introduction of legal remedies for those affected by abusive court proceedings directed against public participation such as the award of the costs of the case and compensation for damages.
  • It also provides for the possibility that courts and tribunals seised of the abusive court proceedings may impose effective, proportionate and dissuasive penalties on the party initiating the proceedings.