European Anti-SLAPP Directive & Lawsuits

An account of SLAPP lawsuits and the new European Anti-SLAPP Directive

by Alejandro Trejos

Strategic Lawsuits Against Public Participation or more commonly known as SLAPP lawsuits are a type of baseless lawsuits or legal actions made by a range of different organisations. Usually being private corporations, individuals or a state institution. Nevertheless, independent of the plaintiff, they all present the same characteristic; they are bigger and stronger than the targeted individual or organisation. The targets are most of the time journalists, however it can also be organisations that defend human rights or any type of party that engages in critical opinions towards other parties. The goal of a SLAPP is to intimidate the defendant. To exhaust both morally and financially the smaller subject in order to intimidate the defendant and deter future potential critics. The objective of a SLAPP lawsuit is not necessarily to win in court. “SLAPPs do not only aim at shrinking the space for criticism, but they have an additional characteristic, namely the power imbalance between the parties“. This imbalance of power (where the plaintiff has more economical and legal power than the defendant) is a fundamental characteristic of SLAPP lawsuits.

In February 2024, the European Union passed an Anti-SLAPP legislative act, the Daphne Laws. This new piece of legislation intends to protect journalists working in the EU from abusive SLAPP lawsuits. The act gives journalists the necessary legislative framework to have a legal defence in case of being SLAPPed. First and foremost, it protects journalists sued in other Member States than their own. Cross border protection offers ensures that protections against SLAPP suits are consistent across all EU Member States. It prevents plaintiffs from exploiting differences in national laws to target defendants in multiple jurisdictions. The act also gives the journalist financial security; courts have the power of assigning the costs of the lawsuit to those that started the SLAPP case. In this way, journalists are not economically intimidated by the bigger and more solvent organisation. In addition, plaintiffs who are found to have filed SLAPP lawsuits may be required to compensate the defendant for their legal costs and any damages suffered as a result of the lawsuit. This addresses one fundamental purpose of SLAPP suits; draining the economic resources of the journalists. Secondly, if a judge after examining the case finds that the claim is baseless or unfounded, he can call an early dismissal of the lawsuit and it will be for the claimant to prove that the lawsuit is not unfounded. This in essence means that if a judge identifies a clear SLAPP lawsuit they have the authority to dismiss it. As it has been mentioned, the new “Daphne Law” protects Journalists within EU nations, however, there is also a procedure in case of a third-country lawsuit. If a person living in the EU is the target of a SLAPP, EU member states must refuse both the recognition and enforcement of the court verdict in that third-country. For example, if an American organisation presents a SLAPP to a EU journalist, whatever the verdict is, The European Union would not account for it.

SLAPP lawsuits are intended to suppress the media critical voice towards a specific organisation. ‘SLAPP suits are a direct attack on the exercise of fundamental rights such as freedom of expression, freedom of information, freedom of assembly and freedom of association’. A direct answer to that is the Daphne Law. The main tenets of this anti-SLAPP law is to safeguard freedom of speech, media freedom and rule of law. The Daphne law intends to provide a legal shield against baseless legal retaliation, in this sense, the law foments investigative journalism. Investigative journalism’s nature is to dive into sensitive and controversial topics, to criticise government corruption, corporate abuse, social crimes and sensitive narratives where usually there is someone who does not want the truth to come out. ‘In SLAPP cases issues of public interest are at stake, including topics such as the environment, corruption, or migration, about which a vivid public debate should evolve in a deliberative democracy’. The anti-SLAPP law pretends to reduce the economical risk and uncertainty the journalists face when sued. A potential consequence of the law is media organisations will be legally protected when dealing with powerful organisations. It foments more critical investigations without the fear of retaliation. In short, the Daphne laws are an empowerment of the media and freedom of speech.