human rights defender

A review of the EU Directive on SLAPP's

Why would perpetrators refrain from SLAPPing those who report wrongdoing? The EU-SLAPP says you can! Particularly in criminal matters. The pretence of protecting those who report wrongdoing is a totally hollow and subsidiary one due to the EU-SLAPP shortcomings.

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Table of contents:

    § A timeline
    § What is it about
    § SLAPP exclusions galore
        • Criminal SLAPPing
        • Reputation versus Good Faith
        • Transnational SLAPPing
        • SLAPPing by States and authorities
    § Positives cancelled
        • Protect any natural or legal person
        • Any elements of public interest
        • Early dismissal of SLAPP's
    § The shushing bandaid
    § Abbreviations in this post

A timeline

The EUC, the EUP and the CEU all worked on the subject of SLAPPs.

It resulted in the EU Anti-SLAPP Directive, or EU-SLAPP.

Over the last two decades the international community has been vocal. Everyone demands for the abolition of reputation laws and for the protection of those who report wrongdoing from criminal SLAPP's. Just a few from the plethora examples:

Despite the plethora repeated demands, and EU member states being long time parties to relevant international instruments, on 9 June 2023 the CEU adopted its general approach to SLAPP's (GA-SLAPP) explicitly excluding the majority of SLAPP cases.

Subsequently, warnings about the GA-SLAPP's shortcomings were provided to the EU, such as:

The GA-SLAPP is inadequate and the EU has been warned about it. Despite the warnings, the SLAPP permitting will of the CEU did not yield, and on December 13th 2023 the CEU submitted their final “Proposal for a directive on strategic lawsuits against public participation“ which is substantially a copy-paste from their problematic GA-SLAPP.

No time to loose, on December 20th 2023 the CEU sent its proposed directive to the EUP for adoption “at first reading”.

The CEU adapted the proposed directive and the final text of the EU-SLAPP was approved by EUP on 27 February 2024 and the CEU on 19 March 2024. It was officially signed on 11 April 2024 and has appeared in the Official Journal on 16 April 2024 as Directive (EU) 2024/1069. It entered into force on the 20th day following its publication, i.e. 6 May 2024, and Member States now have up to 7 May 2026 to implement it into their national legislation.

SLAPP away in Europe? Let's dig into it.

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What is it about

In its own words:

The purpose of this Directive is to eliminate obstacles to the proper functioning of civil proceedings, while providing protection for natural and legal persons who engage in public participation on matters of public interest, including journalists, publishers, media organisations, whistleblowers and human rights defenders, as well as civil society organisations, NGOs, trade unions, artists, researchers and academics, against court proceedings initiated against them to deter them from public participation.

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SLAPP exclusions galore

With the EU-SLAPP, wrongdoers have legal grounds to initiate SLAPPs based on claims:

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Criminal SLAPPing

While point 5 of the EU-SLAPP recognises the EUP “expressed the need for legislative measures in the areas of civil and criminal procedural law” and its point 17 admits SLAPPs “can also involve administrative or criminal cases” the points 17 and 19 alarmingly exclude criminal claim SLAPPs from the EU-SLAPP:

… applies only to matters of a civil or commercial nature (pt17)
However, it should not apply where the consideration of these claims is governed fully or partially by criminal procedural law. (pt19)

Ultimately, in article 2 the EU-SLAPP appears to set in stone for criminal SLAPPs to continue in all glory:

This Directive shall not apply to criminal matters or arbitration and shall be without prejudice to criminal procedural law.

But the EU-SLAPP contradicts this in point 26 by recognising various criminal offences:

Allegations of corruption, fraud, embezzlement, money laundering, extortion, coercion, sexual harassment and gender-based violence, or other forms of intimidation and criminality, including financial criminality and environmental crime.

And point 26 further discredits the EU-SLAPP's stance to exclude criminal claims:

Where the wrongdoing in question is a matter of public interest, it should not be relevant whether it is categorised as a criminal or administrative offence under national law.

It leaves the aims open to … strategic litigation ?

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Reputation versus Good Faith

The EU also excludes criminal SLAPP proceedings in its EU-SLAPP in the name of reputation being a higher human right than the public interest in having wrongdoing reported or the Universal Right to Truth principle.

The EU-SLAPP upholds “reputation“, for example in its point 7:

respect for the fundamental right to protect one’s reputation

Our EUP does this in the full knowledge that:

The use of criminal defamation has an undisputed chilling effect on those engaging in public participation, particularly when a prison sentence can be imposed on the accused. However, civil defamation lawsuits are also used to silence … similar to that of a criminal penalty and as the defendant usually enjoys fewer procedural safeguards in civil proceedings than the accused in criminal ones, offering claimants more possibilities to (ab-)use the procedure to attain their purposes.

The reason is simple. As is evident from previous versions of the same Briefing by the EPRS referring to the 332 page comparative study on Strategic Lawsuits Against Public Participation (SLAPP) in the European Union:

all but six Member States criminalise defamation, and in all but one of those, the sanction can be imprisonment.

In 20 member states you can end up in prison for speaking up against wrongdoing. A chilling wake-up call that the EU-SLAPP by excluding reputation claims misses its aim.

It is also noteworthy, highly worrying in my opinion, that according to the [OSCE] in its comparative study on Defamation and Insult Laws in the OSCE Region:

The majority of states with state insult laws are located in Western Europe

The CoE Commissioner for Human Rights reported in 2021 in the report “Wanted! Real action for media freedom in Europe” that:

Criminal defamation and insult laws remain widespread in Europe

In addition, the [OSCE] referred above finds:

several states have recently strengthened criminal defamation laws

The UNSR-FS report also points to the human rights violating reputation laws.

So reputation is a distinctly European problem ! The majority of states with state insult laws are located in Western Europe, Criminal defamation and insult laws remain widespread in Europe, and several states have recently strengthened criminal defamation laws !

Reputation and good faith laws being under pressure of human rights violation claims, the ECHR suddenly felt compelled to produce two papers in the fall of 2023 on its jurisprudence:

“Chilling” how the international expert bodies are vocal against “reputation” and “good faith” laws, and how European bodies “cramp” at the idea of having to deal with these problematic laws and human rights violating judicial outcomes.

As such the EU-SLAPP hollows out, even provides for the annihilation of the protections the EU-SLAPP stands for. This is because attent to reputation and interpretation of good faith intent of wrongdoing and its reporting come before all other considerations.

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Transnational SLAPPing

Although only 9.5% of SLAPP's appear to be of cross border nature, the EU-SLAPP is applicable “only to … cross border implications” (point 17).

From its article 1, article 4, …:

matters with cross-border implications

For SLAPP's which do not have a cross border implication, member states can do as they pretty please. A humongous, 90.5% of cases, hiatus. While not dismissing the vital importance of tackling all SLAPP cases, it would appear the EU-SLAPP is designed to leave national interests, national law, unchecked. No wonder the CEU, our ministers, made certain the EU-SLAPP is hollowed out completely on so many fronts.

Articles 16 and 17 address EU citizens suffering transnational repression by states outside the EU in that “recognition and enforcement of a third-country judgment … is refused” and “compensation for the damage and the costs incurred in connection with the proceedings before the court or tribunal of the third-country” are due.

Unfortunately, the EU-SLAPP article 18 contradicts, annihilates, this rightful stance against transnational repression:

This Directive shall not affect the application of bilateral and multilateral conventions and agreements between a third State and the Union or a Member State concluded before the date of entry into force of this Directive.

The contradiction lies in the fact transnational repression occurs mostly when states are members of judgement and judicial assistance request execution conventions. Take SIS-II, Interpol, the European Arrest Warrant, … any mutual assistance convention as examples.

Moreover, countries newly joining these older automatic judicial execution instruments are wholly subject to them. These instruments can not be rewritten for the benefit of the EU-SLAPP. So even if states would join these earlier international instruments after the entry into force of the EU-SLAPP, they would not be subject to the EU-SLAPP due to these earlier instruments provisions.

This article 18 provision annihilates transnational repression protection, thanks to our national ministers.

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SLAPPing by States and authorities

The EU-SLAPP's point 15 originally was clear about States and their actors to not benefit any alleged SLAPP protection. Indeed, the States and their authorities are as per the various anti corruption conventions always apriori presumed responsible, and therefore can not claim to be SLAPPed.

The corrected EU-SLAPP version of point 15 leaves states the freedom to hold themselves and their actors accountable or not. A State privilege to hide, protect, its wrongdoing authorities behind claims of civilians conducting SLAPPs. It is a sizeable regression hollowing out the rights of those speaking up against wrongdoing by the State and its authorities.

original point 15 hollowing out point 15 final point 20
The Directive does not apply to claims arising out of liability of the State for actions or omissions in the exercise of state authority (acta iure imperii) and claims against officials who act on behalf of the state and liability for acts of public authorities, including liability of publicly appointed office-holders. The Directive should not apply to claims arising out of liability of the State for actions or omissions in the exercise of state authority (acta iure imperii) and claims against officials who act on behalf of the state and liability for acts of public authorities, including liability of publicly appointed office-holders, unless national law provides for it. This Directive should not apply to claims arising out of liability of the state for actions or omissions in the exercise of state authority (acta iure imperii) or to claims against officials who act on behalf of the state or to liability for acts of public authorities, including liability of publicly appointed office-holders. Member States could extend the scope of the procedural safeguards provided for in this Directive to such claims under national law.

Whether using should or national law, you can rest assured that states will not leave themselves or their state actors exposed voluntarily, and will readily use the EU-SLAPP to ensure they can not be held accountable for their wrongdoing.

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Positives cancelled

The EU-SLAPP also has interesting positive evolutions, such as:

Sadly, on top of the already discussed exclusions, these positives may further get cancelled by for example:

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Take the definition in point 9 as a first example:

This Directive does not provide a definition of a journalist, since the aim is to protect any natural and legal person on account of their engagement in public participation. However, it should be underlined that journalism is carried out by a wide range of actors, including reporters, analysts, columnists and bloggers, as well as others who engage in forms of self-publication in print, on the internet or elsewhere.

This is the EU finally aligning who should be protected to international Human Rights standards which have prevailed for decades already in other jurisdictions and international instruments.

The “wide range of actors” are defined in the EU-SLAPP as, among others:

reporters, analysts, columnists, bloggers, anyone who engages in forms of self-publication, Human Rights Defenders, academics, researchers, artists, anyone promoting and safeguarding (civil) rights.

This civil rights claim is as previously discussed a further example of contradiction to the EU-SLAPP's intent of fundamental human rights, which by their nature are not exclusively civil but include also criminal and administrative rights.

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Any elements of public interest

In its “aim to protect any natural and legal person” exercising “fundamental human rights”, the EU-SLAPP defines only two exclusions:

only when the matter contains an element of public interest (pt23)
satisfy the curiosity of a particular audience regarding the details of a person’s private life (pt24)

So the reported wrongdoing should contain an element of public interest without which it does not qualify under the EU-SLAPP. Public interest is defined as not being out of curiosity of private life. A very broad and all encompassing definition indeed.

Are covered any “forms of self-publication in print, on the internet or elsewhere”. Though “elsewhere” opens up the scope, is would appear it may only apply to written forms, not the verbal forms such as radio, TV or video.

The “fundamental rights” for “current or future public interest” comprise in various places throughout the EU-SLAPP non limitatively as:

the freedom of expression and information, freedom of the arts and sciences, freedom of assembly and association, gender equality, gender-based violence, non-discrimination, protection of the rule of law, media freedom, pluralism, relevant aspects of goods – products – services, public health, safety, the environment, climate, consumer, labour, creation, exhibition, advertisement, marketing activities or other promotion of journalistic, political, economic, social, cultural, scientific, academic, artistic, commentary or satirical communications, publications or works, lobbying activities, demonstrations, protests, the exercise of the right to good administration, the right to an effective remedy, filing of complaints, petitions, claims before courts, administrative and judicial claims, participation in public hearings, the publishing platform (internet, print, shop), research, surveys, campaigns, any other collective actions, environmental standards, product safety, a license, crime, money laundering, corruption, fraud, embezzlement, extortion, coercion, sexual harassment, other forms of intimidation, and any preparatory, supporting or assisting activities directly linked thereto.

From these non exhaustive examples one can distill a whole array of criminal law subjects. Criminal law subjects which the EU-SLAPP is excluding from the onset. This contradiction will be a SLAPPer's feast in courts throughout Europe.

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Early dismissal of SLAPPs

“Early dismissal” of SLAPP cases is extensively provisioned for in the EU-SLAPP. But so is the natural “right of appeal”. The finances for this “right of appeal” are provisioned for in favour of the SLAPPed.

While this is applaudable, the stamina and will to go on for years in appeals procedures is personally dependent. The “last man standing” nature in SLAPP cases is set to continue with all its ill-effects.

Shouldn't the law provide to take this stamina and endurance responsibility off the shoulders of those reporting wrongdoing?

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The shushing bandaid

The EU bodies pat their back because they have a compromise to counter the EU-SLAPP failures. A bandaid for shushing critiques.

In the recommendations of the EU-SLAPP, member states are suggested the EU-SLAPP is a minimum, and encouraged to cover the EU-SLAPP shortcomings by their own national legislative initiatives. It's preparatory work mentioned:

the non-binding recommendation … has a broader scope of application ratione materiae than the proposed directive
the future directive acts as a minimum standard of protection for SLAPP victims … set minimum standards, and invited Member States to do their part

Needless to remind the EU Whistleblower directive had the same back patting bandaid, and that the result of CEU not wanting wrongdoing reporting regulations, the member states are using the [EWD] as the argument to exclude the vast majority of people reporting wrongdoing from accessing the directive's support and protection measures.

States and state authorities under the EU-SLAPP may continue to arbitrarily SLAPP unchecked for the benefit of their national interests, and do so from within their national judicial systems and laws. And States can now also transnationally repress with the EU-SLAPP's explicit consent to blind judicial cooperation conventions.

A fine example of how in Europe the flourishing of corruption is made possible when public decisions over policies are directed away from the public interest towards a special interest by the dictate of our national ministers, the CEU.

In Europe, silence and omerta for the benefit of perpetrators and perceived reputation are still king, with modern laws to ensure of it. Since the EU-SLAPP says you can SLAPP most of the time, why wouldn't perpetrators use SLAPP's even more to their advantage than they already do? The message in Europe is: SLAPP away to silence anyone reporting wrongdoing!

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Abbreviations in this post
UNSR-FS United Nations Special Rapporteur, UNSR, on the promotion and protection of the right to freedom of opinion and expression, Irene Khan
CoE Council of Europe
CoM Committee of Ministers
CEU European Council, Council of the European Union
EUC European Commission
EUP European Parliament
EU-SLAPP DIRECTIVE (EU) 2024/1069 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 11 April 2024 on protecting persons who engage in public participation from manifestly unfounded claims or abusive court proceedings (Strategic lawsuits against public participation)
SLAPP Strategic Lasuit Against Public Participation
reputation credibility, honour, defamation, calumny, …
good faith Good faith is an abstract and comprehensive term that encompasses a sincere belief or motive without any malice or the desire to defraud others.
OECD Organisation for Economic Co-operation and Development
ECHR European Court of Human Rights
EU European Union
JURI Committee on Legal Affairs of the European Parliament
EPRS European Parliamentary Research Service
EU-CITZEN Academic Network on European Citizenship Rights
CEPS Centre for European Policy Studies
GA-SLAPP Council of the European Union general approach to SLAPP's adopted on June 9th 2023

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