Anti-SLAPP directive may contribute to stifling public debate

A few weeks ago the European Parliament adopted a directive on „protecting persons who engage in public participation from manifestly unfounded or abusive court proveedings” („strategic lawsuits against public participation” - SLAPP). The document aims to protect individuals and entities engaged in public debate from clearly unjustified legal actions aimed at censoring, intimidating, and silencing critics by burdening them with the costs of legal defence until they retract their criticism or opposition. Although the directive has noble intentions, attention should be drawn to several legally questionable issues. The most important will be the application of the proposed regulations in practice and the effect of their implementation into national legislation. The implementation of these provisions may serve to protect entities that suppress public debate.

As indicated by the authors of the proposal, these lawsuits have been observed in the European Union only recently but are becoming increasingly common over time. The European Commission's directive is one of the points envisaged in the European action plan for democracy and aims to strengthen pluralism and media freedom in the European Union. Given that there are no EU-wide regulations regarding SLAPP suits, the Commission aims to develop a common definition of SLAPP suits and establish procedural guarantees to provide member state courts with tools to deal with such lawsuits.

New Definitions

In the proposed act, alongside defining the term "SLAPP," a definition of the term "public debate" has also been prepared. Public debate is protected if it concerns a matter of public interest within the meaning of Article 3(2). It includes any statement or action by a natural or legal person expressed or carried out within the exercise of the right to freedom of expression and information concerning a matter of public interest, as well as preparatory, supporting, or directly related actions. This encompasses complaints, petitions, administrative complaints or lawsuits, and participation in public hearings. This results in a fairly broad range of situations that may fall under the definition of public debate - as indicated by the provision, it does not necessarily have to take place publicly.

It is also worth noting the definition of the term „matter of public interest”, which conditions the application of the directive's provisions. According to the project, these are matters concerning areas such as public health, climate, corruption, or actions aimed at combating disinformation, and this catalogue is closed.

In the case of rulemaking that may restrict rights as fundamental as the right to a fair trial, it is particularly important to create definitions as precisely as possible. Inconsistent interpretations can lead to uneven application of the directive in different jurisdictions and cases. This undermines the goal of creating a harmonised approach to combating SLAPP suits. In this case, it would be highly recommended to clarify the guidelines. The European Commission and member states should issue clear and consistent guidelines interpreting key definitions. These guidelines should include specific examples and take into account case law to ensure uniform understanding and application.

Lack of Transparency

The directive has been criticised for its lack of transparency in the legislative process so far. Criticisms included, among other things, the public consultation process, which was inadequate, particularly regarding the involvement of civil society organisations and stakeholders directly affected by SLAPP suits. This limited the opportunity to hear and consider various perspectives and potential concerns. The Commission has also been criticised for insufficient transparency regarding the legislative process. This lack of transparency hampers informed public debate and oversight.

Penalty for Filing Lawsuits

The directive provides that member states ensure that courts recognising a case as an abusive legal action aimed at suppressing public debate have the possibility to impose effective, proportionate, and deterrent penalties on the party initiating such proceedings. This raises two issues. Firstly, the amount of such penalty will be determined by the court of the respective member state, so depending on the chosen jurisdiction, this penalty may vary significantly. Secondly, the determination of "having the possibility" means that imposing such a penalty will be a discretionary power of the court. This may raise some concerns considering that courts will have considerable discretion in classifying a given lawsuit as a SLAPP.

Security Deposit Requirement

Member states are obliged to ensure that in legal proceedings aimed at suppressing public debate, the court recognising the case as an abusive legal action is entitled to require the claimant to provide security for the costs of proceedings or procedural costs and damages if it deems such security appropriate due to the presence of elements indicating that the legal proceedings constitute an abuse. As noted by Prof. Ireneusz Kunicki in the comments on the directive, the obligation to provide security for the costs of proceedings or damages may effectively hinder the enforcement of actually violated rights. He rightly pointed out that imposing an obligation by the court to deposit an amount, even tens of thousands of zlotys as security, may prevent many individuals from filing a lawsuit for the protection of personal rights. While this security may only be able to be imposed on the claimant at the request of the defender, as the professor notes, it is difficult to assume that such requests will not be made.

Summary

There is no doubt about the noble purpose of the proposed directive. SLAPP suits, unlike standard proceedings, are not aimed at exercising their right to access to justice but are intended to intimidate defenders and deprive them of resources. The primary goal of such proceedings is to create a chilling effect, silence critics, and discourage them from continuing their activities. Nevertheless, despite this noble purpose, the solutions adopted in the proposed directive may be used for the opposite purpose and serve to protect entities that suppress public debate. The aforementioned doubts, as well as the considerable discretion of national legislators and, consequently, national courts, may in practice lead to a situation where a person actually affected by, for example, a violation of personal rights, will not be able to enforce their rights and will be financially penalised for their attempt. Fear of even frivolous lawsuits under the directive may discourage some individuals and entities from engaging in public debate or criticism, even if they are confident in their position. Bearing this in mind, it is worth reconsidering some of the provisions of the project, and when implementing it into national legislation, primarily consider its purpose.

Julia Książek - analyst at the Center for International Law Ordo Iuris