The Council of the EU’s common position (‘general approach’) on the bloc’s draft directive against strategic lawsuits against public participation (SLAPPs) fails to support several critical safeguards found in the Commission’s earlier and more ambitious proposal.

Instead of backing necessary measures to protect journalists, activists and watchdogs from SLAPPs, the general approach agreed by member state governments on 9 June significantly waters down the Commission’s proposal. It takes a restrictive approach on some of the proposal’s key provisions, greatly limiting the instrument’s ability to protect SLAPP victims across the EU.

Liberties, together with other civil society groups under the Coalition Against SLAPPs in Europe (CASE), has been calling for a robust EU anti-SLAPP directive to stem the proliferation of this abusive lawfare, as reported in the Liberties Media Freedom Report 2023.

The 5 most concerning drawbacks

The Council’s agreed position does not meet the moment. At a time when SLAPPs are on the rise across the EU, member state governments have decided to support a proposal that is markedly weaker in five key ways:

• a formalistic notion of what constitutes a cross-border case for the purpose of the EU directive, which would exclude most SLAPPs aimed at silencing debate on matters of public interest and with EU-wide relevance, just because the parties are in the same jurisdiction;

• the exclusion from the directive’s scope of civil claims brought in criminal proceedings;

• significant weakening of the early dismissal mechanism, including by means of a very restrictive definition of manifestly unfounded cases and by ruling out the possibility to appeal decisions refusing early dismissal;

• the deletion of the provision on damage compensation in favor of SLAPP targets;

• the extension of the transposition period to three years, against the background of increasing SLAPPs targeting journalists and rights defenders across the EU.

These changes cut against several of the most important provisions that Liberties and CASE have been advocating for. If left unchanged in the final directive, these changes would significantly hamper its ability to bring any value added in protecting SLAPP victims.

What’s next for the anti-SLAPP directive

All eyes now turn to the European Parliament, where lawmakers will consider the Council’s position and, hopefully, propose their own changes that hew back towards the Commission’s promising initial proposal.

Indeed, it is now all the more important that the Parliament shows the firmest support for robust and meaningful anti-SLAPP safeguards. CASE calls on the JURI committee to put forward an ambitious text with a view to the upcoming committee and plenary votes, so that trilogues can kick off on a stronger foot.

To help lawmakers, CASE developed a list of key priorities to guide negotiations on the Commission’s proposal. Central to this is maintaining the core strengths found in the Commission’s proposal, namely:

• broad personal scope, to encompass the full diverse range of SLAPP victims;

• innovative notion of cross-border relevance expanding the scope to cover certain domestic cases as well;

• early dismissal of SLAPP cases as a key procedural safeguard;

• security for costs, award of costs and damages on the defendant side;

• effective, proportionate and dissuasive sanctions.

The Council’s general agreement represents a huge step back from the Commission’s promising draft anti-SLAPP directive. Now MEPs must show similar courage in pushing back against the Council and seeing through a directive that truly supports victims of SLAPPs.

For the next moves in the anti-SLAPP directive negotiations, stay tuned to Liberties and subscribe to our newsletter.