28 May 2024

The Council of Europe and European Union strengthen protection against abusive lawsuits silencing critical voices

Recently, new measures were adopted at the European level to protect against abusive and manifestly unfounded lawsuits that aim to silence those who engage in public participation in matters of public interest – including National Human Rights Institutions (NHRIs). These measures include the Council of Europe Recommendation and the European Union (EU) Directive on tackling strategic lawsuits against public participation (SLAPPs). ENNHRI has long advocated for strong and timely measures to combat SLAPPs, while acknowledging NHRIs’ role in doing so.

The binding standards introduced by the EU

The EU Directive against Strategic Lawsuits Against Public Participation (Anti-SLAPP Directive) is a milestone in providing EU-wide robust protection for journalists and human rights defenders – including NHRIs – against abusive court proceedings. It entered into force on 6 May 2024, and EU Member States have two years to transpose the rules into their national legal systems.

Matters with cross-border implications

The EU Anti-SLAPP Directive applies to civil and commercial matters with cross-border implications. It aims to counter ‘forum shopping’; this is the practice of choosing the competent court that has the most favourable rules for the claimant. Claimants do this to gain an economic and psychological advantage over potential defendants. The Directive states that a matter should be considered as having cross‑border implications unless both parties are domiciled in the same EU Member State as the court “seized” and all other elements relevant to the situation concerned are located in that Member State.

ENNHRI supported a broad interpretation of cross-border implications. This covers situations in which both parties are in the same EU Member State, but where the act of public participation is relevant to more than one EU Member State.

Early dismissal of manifestly unfounded claims

A key element of the new legislation is the introduction of the early dismissal of manifestly unfounded claims. Additionally, the burden of proving the claim is ‘well founded’ rests on the claimant who has brought the action. ENNHRI recommended strengthening the early dismissal mechanism and other procedural safeguards by extending them to all abusive proceedings. In the final Directive, however, these only apply to manifestly unfounded cases.

Other safeguards against SLAPPs

The Directive ensures crucial safeguards. These include the accelerated treatment of applications for safeguards; the access to remedies for victims of SLAPPs; the use of dissuasive penalties; and access to support for the defendant such as third-party interventions.

ENNHRI advocated restoring the provision of damage compensation for SLAPP victims and the automatic award of relevant costs borne by the defendant. While the former was included in the final EU Directive, the latter was not.

Third country manifestly unfounded judgments not recognised

The Directive also addresses third-country judgments where the proceedings against EU-domiciled defendants are manifestly unfounded. The Directive states that EU Member States cannot recognise and enforce them. In parallel, a new special ground of jurisdiction was created to ensure that targets of abusive court proceedings who are domiciled in the EU Member States have an efficient remedy available within the EU against abusive court proceedings brought in a tribunal or court of a third country.

The Council of Europe recommends how to combat SLAPPs across Europe

Last month, the Committee of Ministers of the Council of Europe (CoE) adopted a Recommendation on countering SLAPPs.

This calls on all CoE Member States to develop strategies and measures to combat abusive legal actions threatening public participation. It introduces standards that European countries should abide by to ensure the effective protection of human rights, in particular freedom of expression. Furthermore, the Explanatory Memorandum to the Recommendation mentions explicitly that NHRIs must be involved to tackle SLAPPs effectively.

The Recommendation covers protection from SLAPPs in civil, criminal, and administrative proceedings domestically and across borders in a comprehensive way. It sets out a useful list of indicators on how to identify SLAPPs. Moreover, the Recommendation proposes procedural safeguards and remedies against abusive proceedings, while setting out how to ensure effective legal, financial, and psychological support for targets and victims of SLAPPs. Finally, it underlines the importance of awareness raising and educational activities on the dangers of SLAPPs and access to relevant protection mechanisms.

ENNHRI has contributed to the CoE consultations on this Recommendation, supporting it and urging the inclusion of essential safeguards and the active involvement of NHRIs in tackling SLAPPs. ENNHRI’s submission was developed with support from ENNHRI members from Romania (Romanian Institute for Human Rights) and Belgium (FIRM-IFDH). These institutions act as national focal points on SLAPPs.

The relevance of European anti-SLAPP measures to NHRIs

NHRIs help protect human rights defenders against SLAPPs. Being human rights defenders themselves, they are also subjected to defamation, harassment, and attacks that constitute SLAPPs. For instance, the former head of the Polish NHRI faced civil action for a statement made in his professional capacity. This formed part of a wider context of actions seeking to undermine the NHRI.

SLAPPs against NHRIs are incompatible with the UN Paris Principles. These state that the decision-making body and staff of NHRIs must enjoy protection from criminal and civil liability for official actions and decisions undertaken in good faith. This is to guarantee that NHRIs can carry out their mandates effectively and independently.

While the CoE Recommendation provides non-binding guidance on how to counter SLAPPs across Europe, the EU Anti-SLAPP Directive sets minimal binding requirements that EU Member States must introduce. This means that EU Member States can implement or maintain stronger domestic provisions to further protect persons engaged in acts of public participation.

NHRIs have a pivotal role in helping and monitoring the Directive’s implementation at the national level. They can also advocate for establishing or strengthening domestic legislation on the matter. For instance, the Irish NHRI contributed to draft legislation on reforming current defamation laws. This includes a section on innovative measures to tackle SLAPPs in Ireland.

Within their mandate, NHRIs may also support victims of SLAPPs or act as national focal points on SLAPPs (in line with the European Commission Recommendation on protecting journalists and human rights defenders from SLAPPs). For example, ENNHRI members in Romania (the Romanian Institute for Human Rights) and Belgium (FIRM-IFDH) serve as such focal points.

Further information on ENNHRI’s work to counter SLAPPs

Discover more below about what ENNHRI and its members have done to counter SLAPPs, alongside other relevant information: