Will the “anti-SLAPP” directive bring expected change to the public debate protection standard?

On May 6, 2024, Directive 2024/1069 on protecting persons who engage in public participation from manifestly unfounded claims or abusive court proceedings, referred to in the media as the “anti-SLAPP Directive,” went into effect. Will the new EU regulation bring the expected change in the standard of protection of public debate?

As the directive’s preamble states, it was created “to address the increasing number of strategic lawsuits against public participation (‘SLAPPs’).” These lawsuits, brought mostly by entities with significant power (multinational corporations, politicians, state entities) against journalists or academics, aim to freeze public debate.

History of the directive

For a long time, civil society organizations had to put pressure on EU officials, but unfortunately, the breakthrough came only with the tragic death of Maltese journalist Daphne Caruana Galizia in 2017. She published the results of her investigations about corruption in politics on her blog “Running Commentary.” She was killed in a bomb attack while in the middle of a journalistic investigation into the “Panama receipts” scandal. Before her death, the journalist was being “attacked” with numerous lawsuits to discourage her from continuing her fight.

In 2021, the European Parliament called on the European Commission to develop a soft and hard law package to propose a solution to the problem. In 2022, the Commission made a directive proposal.

Aims and main objectives of the Directive

The Directive, according to its Article 1, “provides safeguards against manifestly unfounded claims or abusive court proceedings in civil matters with cross-border implications brought against natural and legal persons on account of their engagement in public participation”. Understanding this goal requires an explanation of several of the terms used in this article, which the preamble to the Directive helps with.

The key term is “strategic lawsuits against public participation” – SLAPPs. That is why the Directive’s common name is anti-SLAPP. An exemplification of this provision is the following Article 6, which obliges member states (except Denmark, which has not acceded to the Directive) to provide defendants with a catalog of protections: injunctive relief, a motion to dismiss a manifestly unfounded claim, reimbursement of legal costs (charging the plaintiff), or sanctions against a plaintiff who initiates a SLAPP.

However, it should be noted that a plaintiff’s claim does not have to be completely unfounded under the Directive. This understanding is intended to ensure the effectiveness of the protection guaranteed by the Directive. For example, the preamble in paragraph 29 points to an action from a violation of personal rights, which could be the basis for a small amount of compensation, and the plaintiff, as the subject of the claim, tries to claim an excessively high amount or a disproportionate remedy.

The Directive applies only to civil and commercial cases, even though restricting public debate can occur in administrative or criminal proceedings. Article 2 very clearly develops the Directive’s negative sphere, specifying which areas it does not apply: customs, administrative cases, state liability for acts and omissions in exercising state authority, criminal cases, and arbitration.

An essential element indicated in Article 1 is also “cross-border implications,” further clarified in Article 5, which gives a negative definition, excluding from this understanding cases in which “both parties are domiciled in the same Member State as the court seised, and all other elements relevant to the situation concerned are located only in that Member State.” The Directive is limited to cases with “cross-border implications” because they are more costly and demanding for the defendant and are not usually a hardship for the plaintiff, which is, for example, an international corporation.

By doing so, the plaintiff can also, to its advantage, lengthen the proceedings and increase their costs or follow the practice of forum shopping (choosing a favorable jurisdiction).

In fine, Article 1 indicates who is protected by the Directive. These are natural and legal persons, and their involvement in the public debate determines the applicability of the Directive to their situation. However, due to this article’s laconic nature, it is necessary to refer to the preamble and other provisions to understand better who is entitled to protection. The preamble projects the catalog of actors quite broadly, as they are: journalists, publishers, media organizations, whistleblowers and human rights defenders, civil society organizations, NGOs, trade unions, artists, scientists and academics. However, special attention has been given to journalists by emphasizing their essential role in society in point 8 and indicating the understanding of the term “journalist” for the Directive in point 9. The Directive itself does not contain a legal definition of a journalist precisely to extend protection to the broadest possible group of actors who carry out the mission of providing the public with information that is important to the public debate: reporters, analysts, commentators and bloggers, as well as other individuals who self-publish content in print, online or otherwise.

However, the Directive’s protection extends beyond journalists. The EU legislator also identifies scientists, academics, and artists whose work makes an important contribution to public awareness and countering disinformation.

Member states must also remember that the Directive only establishes minimum requirements. Thus, nothing prevents a national order from setting a standard higher than that guaranteed by the Directive (Article 3(1)), while it would be unjustified in transposition to lower the existing standard in force in a member state’s legal order [Article 3(2)].

It also follows from the anti-SLAPP protection that a state, once the Directive has been transposed into its legal order, will not be able to recognize a foreign judgment in manifestly unfounded proceedings (Article 16).

Member states have until May 7, 2026 to transpose the Directive.

The state of press and media freedom in Poland

The Ministry of Justice has already begun implementing the directive’s provisions. Internal arrangements are expected to take place in late August/early September, after which the draft will be transferred to the Council of Ministers’ list of legislative and program work. The Civil Law Codification Commission will handle legislative changes.

SLAPPs in Poland most often use Article 212 § 2 of the Criminal Code [defamation] and Article 23 of the Civil Code [personal rights] in conjunction with other provisions as the basis for a claim. According to data obtained by the Watchdog Civic Network from the Ministry of Justice, in 2021, proceedings in Poland based on Article 212 of the Penal Code were 217 (158 convictions), and in 2022 236 (160 convictions).

According to reports by the Coalition Against SLAPP in Europe (CASE), Poland is in the first place regarding the number of SLAPP actions. A similar situation is observed in France, Croatia, and Malta. It is also worth noting that, according to data provided by CASE, 90.5% of cases in Europe are purely domestic (which will exclude the applicability of the directive’s provisions).

SOURCES:

[1] https://sip.lex.pl/#/act/72297945/3528307/dyrektywa-2024-1069-w-sprawie-ochrony-osob-ktore-angazuja-sie-w-debate-publiczna-przed-oczywiscie…?keyword=dyrektywa%202024%2F1069&cm=SFIRST

[2] https://www.rp.pl/opinie-prawne/art40146201-bychawska-siniarska-gliszczynska-grabias-polska-niechlubnym-liderem-slapp-ow

[3] https://siecobywatelska.pl/slapp-y-w-polsce/

[4] https://pl.wikipedia.org/wiki/Daphne_Caruana_Galizia