Liberties sees an extremely disappointing drawback on the side of governments, which, despite their vocal commitment to put forward strong safeguards against strategic lawsuits against public participation (SLAPPs), seriously watered down the Commission’s proposal in their general approach agreed in June, by drastically reducing its scope of application and seriously weakening the core procedural safeguards of early dismissal and damage compensation.
On the other hand, the European Parliament’s position, while maintaining all the core safeguards of the Commission's proposal, and positively reinforcing the draft set of rules on a number of aspects, did not embrace the call to expand the application of the key procedural safeguard of early dismissal to all SLAPP cases. The EP’s proposals to expand the instrument's scope to more domestic cases, extend its application to pending SLAPPs and include additional obligations on victims support, deontological rules for legal professionals and data collection are very welcome, as are efforts to integrate balanced rules on jurisdiction and applicable law for defamation cases to combat forum shopping. However, leaving the possibility for SLAPPs to be dismissed via an early stage mechanism only to the very narrow category of manifestly unfounded proceedings leaves a big loophole which risks depriving many SLAPP targets of effective protection.
Liberties welcomes the statement of UN Special Rapporteur on Environmental Human Rights Defenders Michel Forst on the matter, as a positive sign that the international community is actively taking a stance on the nefarious impact of SLAPPs on public participation, and on the importance for lawmakers to address them seriously.
Ambitious EU anti-SLAPP rules are urgently needed to protect EU watchdogs, and can have a positive ripple effect in the rest of the region and beyond. The world is watching and the EU must not waste this opportunity.
We urge lawmakers from all sides, and the European Commission in its role of honest broker, to take a step back on retrogressive amendments on the Commission proposal and rebalance discussions in a genuine commitment to equip journalists, rights defenders and all those who speak out on matters of public interest with strong safeguards against abusive lawsuits aimed at silencing them. An EU anti-SLAPP directive will be a useful and impactful instrument only as long as:
- It has a broad as possible scope, encompassing the full diverse range of SLAPP victims, any civil claims pending at the time of its entry into force, including those brought in criminal proceedings and covering all domestic cases with a clear European relevance having regard to the public interest at stake;
- It includes as a central procedural safeguard a strong early dismissal mechanism, applicable to manifestly unfounded and abusive proceedings alike, with the mechanism resting on an accelerated procedure, a reversal of the burden of proof mandating the claimant to establish a prima facie case as to each essential element of the claim and decisions refusing dismissal being open to appeal;
- It makes third-party intervention in court broadly accessible;
- It envisages security for costs, award of costs and damages on the defendant side, with compensation of damages being automatically granted without the need for the victim to make a separate claim;
- It includes provisions on ethical standards to discourage lawyers from engaging in SLAPP tactics;
- It mandates effective, proportionate and dissuasive sanctions for SLAPP litigants.
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