Home PublicationsCommentary The European Commission’s Anti-SLAPP Directive is a Step in the Right Direction, But Member States Need to Pass Anti-SLAPP Laws Too

The European Commission’s Anti-SLAPP Directive is a Step in the Right Direction, But Member States Need to Pass Anti-SLAPP Laws Too

by Eva Behrens

While the Internet has made publishing easier than ever, legal threats often stop people from publishing truthful information. The European Commission published a directive on April 27, 2022, in which it tasked Council and Parliament to develop legislation against strategic lawsuits against public participation (anti-SLAPP) to protect journalists, activists, academics, and others in Europe from legal battles intended to stop their work. The anti-SLAPP directive applies to SLAPPs that have cross-border implications with at least one EU country involved, but EU member states should still pass their own anti-SLAPP laws to address purely domestic cases.

SLAPPs refer to defamation lawsuits that powerful individuals or organizations use to threaten individuals, such as journalists, to deter them from publishing unfavorable opinions or information about their organization. In theory, defamation lawsuits are meant to protect individuals from unfair characterizations that could harm them or their businesses. However, individuals or organizations with ample financial resources can use them as a tool against individuals like journalists or activists to intimidate or directly prohibit them from publishing unfavorable information. The idea is that those with limited financial resources and time may be so scared of getting entangled in an expensive, lengthy, and reputation-damaging legal battle that they refrain from expressing unfavorable opinions. Often, the mere threat of a lawsuit is enough.

The EU is a latecomer to anti-SLAPP regulation compared to other jurisdictions, such as several U.S. states, which have had anti-SLAPP laws since the 1990s. The Coalition Against SLAPPs in Europe (CASE), a coalition of European NGOs, published a report in March 2022 that found that SLAPPs in Europe have increased since 2015. In light of the increase in SLAPPs, it is good that the Commission has finally tasked the EU legislative bodies to address this growing issue.

The EU Commission’s anti-SLAPP directive combines punitive and preventive measures to address SLAPPs with cross-border implications in the EU. It would allow individuals and organizations to appeal to EU courts to dismiss abusive SLAPP cases if they involve more than one EU country. In addition, if an EU court dismisses a case as abusive, the claimant will have to bear all the legal costs while the accused party can claim additional damages. The anti-SLAPP law should make SLAPPs less effective and deter claimants from filing such cases in the first place since they may face significant financial consequences if a court finds their claims abusive. The law would also allow European courts not to recognize and not enforce SLAPP court decisions made in non-EU countries such as the UK, where defamation law has long been comparatively plaintiff-friendly. The Commission’s expressed goal of this measure is to stop SLAPP forum shopping, preventing wealthy claimants from picking and choosing countries for their lawsuits depending on where they are most likely to win.

While the Commission’s directive recommends member states adopt national anti-SLAPP laws, this recommendation is non-binding because requiring such a law would be outside the EU’s authority. Since most SLAPP cases do not have cross-border implications, EU member states still need to create national anti-SLAPP laws.

Overall, it is good that the EU is finally taking steps to introduce EU-wide anti-SLAPP law to protect journalists and deter powerful actors from abusing defamation law. The regulation will likely reduce forum shopping, where claimants choose the most favorable legislation for their case. However, an EU directive is only the first step, and member states still need to create national anti-SLAPP laws to protect free expression.

Image credit: Unsplash

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