The EU Commission’s anti-SLAPP initiative is a pioneering step towards measures to stop the increase of abusive lawsuits that aim to silence journalists or rights groups. But now the hard work begins: the European Commission needs to step on the gas pedal and make sure that the European Parliament and EU governments seriously engage on the proposal with the aim to agree upon a strong EU anti-SLAPP directive without delay, and that authorities in each country immediately work to give a concrete response to its recommendations.

“For SLAPP litigants to be truly deterred and for all SLAPP victims to get real protection, EU decision-makers need to swiftly adopt the most ambitious EU anti-SLAPP regulation. They must also promote a mindset shift among all duty-bearers so that concrete progress is made in each EU country”, said Linda Ravo, senior advocacy advisor at Liberties and member of the EU expert group on SLAPPs.

Liberties sees 3 areas the European Commission, the Parliament and EU governments should focus their efforts on as a priority:

1. Keeping up the ambition.

The directive proposed by the Commission takes on many solutions which civil society experts have also been calling for. During the negotiation phase, EU decision-makers must keep up the ambition and continue working towards the strongest possible rules. Any attempt to water down the proposal must be fought back: the scope must remain broad, and strongly anchored to the ultimate objective, which is to fully use the powers granted to the EU to protect any form of public participation, based on the acknowledgement that SLAPPs will often have cross-border implications, insofar as they are aimed at silencing watchdogs engaging on matters whose relevance goes beyond borders.

Efforts should rather aim at closing any loopholes: by leveling up safeguards, so that no claim presenting clear elements of abuse can proceed to trial; by working out certain ambiguities, such as the exclusion of cases related to administrative matters, considering the many SLAPPs brought on the basis of data protection regulations; and by reducing risks to the protection, for example by reining in courts’ discretion in granting key remedies such as compensation for costs and damages or in imposing penalties. When such rules are agreed upon, the Commission must insist that governments transpose the rules to apply to all SLAPP cases, cross-border and domestic alike, so that all victims can enjoy the same level of protection.

2. Mindset change needed.

For the rules and recommendations to bring real progress, a profound culture change is needed. This includes lawyers, judges and public authorities across the EU. New laws and practices are a good start, but without a mindset shift, there will be no real change. SLAPP litigants’ tactics must be exposed and denounced by authorities. The Commission should mobilize lawyers and judges’ associations to help with this by adapting their disciplinary regimes and sensitizing legal and judicial authorities on this issue. Effective and sustainable support mechanisms and the availability of free legal assistance must be a reality. Only then will SLAPP victims feel empowered and safe.

3. Going after the root causes.

SLAPPs are a symptom of the increasing trend of harassing those who speak out in the public interest. They are used to silence critical views and censor free speech. These toxic lawsuits are made possible by regulations that restrict expression and hinder the work of watchdogs like journalists and civil society groups. As part of its work to defend media freedom and protect civic space, the European Commission should build on its anti-SLAPP initiative to undertake, in cooperation with other actors like the UN and Council of Europe, a genuine effort to ensure that governments take concrete steps to review existing laws unduly limiting free speech and expression, and introduce safeguards against abuse, such as caps on damage claims, and stricter rules on where and on which grounds proceedings may be brought

Liberties and other civil society groups part of the CASE coalition stand ready to continue supporting the Commission’s efforts, including within its expert group on SLAPPs, and will engage with the European Parliament and EU governments and authorities to make sure this initiative is built to bring real progress on the ground.

Liberties is a Berlin-based civil rights network organisation coordinating campaigns and reports across the EU, including the Rule of Law Report 2022, or the Media Freedom Report 2022.

What is a SLAPP?

Pursued by wealthy and powerful litigants, SLAPPs are abusive lawsuits that block accountability and undermine democratic rights. They aim to silence public watchdogs through the litigation process, which they use to drive up costs and harass their targets. The number of SLAPP cases across Europe is increasing year on year, as demonstrated in a recent study by CASE.

ENDS.