‘Self-defeating’: Swedish presidency criticised on anti-SLAPP Directive

Members of the Coalition Against SLAPPs in Europe (CASE) have written to the Swedish Presidency of the EU Council about the draft compromise proposal for the European anti-SLAPP Directive (Strategic Lawsuits Against Public Participation), which they have described as “self-defeating” and adding that it “runs contrary to the purpose of the anti-SLAPP Directive and undermines its spirit”.

In April last year, the European Commission (EC) published its proposed anti-SLAPP directive, broadly welcomed by several press freedom and civil society organisations. Still, many noted that certain areas of the proposal needed to be expanded to better protect against abusive lawsuits targeting public watchdogs such as journalists, human rights defenders and civil society organisations engaged in public participation.

SLAPPs are abusive lawsuits that use the litigation and pre-litigation process to silence critical speech, a tactic often pursued by rich and powerful individuals or organisations. SLAPPs are primarily used to silence and harass critics by forcing them to spend money to defend these baseless suits, thus draining the target’s financial resources.

In their letter, the coalition argues that the “compromise proposal goes in the opposite direction, watering down crucial protections and radically narrowing the scope of the procedural safeguards proposed by the European Commission”.

According to its proposal seen by EUobserver, Sweden removed special provisions on cross-border cases and significantly watered down language on the early dismissal of claims.

The coalition notes that according to the new proposal, “‘Manifestly unfounded’ is defined so narrowly in the new Recital Paragraph 13(a) as to render the proposed early dismissal mechanism useless”.

They also express concern that Article 15 on the compensation of damages has been removed. In addition, other measures designed to protect people and civil society organisations targeted by SLAPPs and to deter the use of SLAPPs have also been weakened.

CASE Coalition concludes by saying it fails to see how the mechanisms proposed in the compromise proposal “would make any material difference to those targeted by SLAPPs”.

Very good exchange with Vice President @VeraJourova on the #AntiSlapps Directive. For us it is clear that we need meaningful legislation that helps #SLAPPs targets. We will use this momentum to make a change for better protection against these vexatious lawsuits. 💪 pic.twitter.com/v55Ikz9IAD

— Tiemo Wölken 🇪🇺 (@woelken) March 15, 2023

They add that “it is crucial, therefore, that national governments act now to ensure that the European Council does not water down the provisions in the EC’s proposed directive, but builds on them to ensure robust protections are in place against SLAPPs in Europe”.

In Malta, the government’s proposed amendments to protect authors, editors and publishers from SLAPP are also considered restrictive by legal experts and international organisations.

The government is proposing an amendment to Article 24 of the Media and Defamation Act that outlines how, in executing a foreign court judgment obtained against a Maltese-domiciled author, editor or publisher and which orders the payment of damages/costs for an equivalent case of libel, then Malta’s court may limit the amount in damages to that which is allowed under the Media and Defamation Act if three criteria are met.

These are: The foreign action is substantially based on claims related to Malta, the foreign action could have been filed in Malta, and the foreign action was probably filed abroad as part of a strategy intended to place an unwarranted financial burden on the defendant.

The amendment does not mention whether a defendant has started his/her defence abroad, nor does it safeguard defendants domiciled in Malta from the costs of entering a defence abroad.

In an official statement published on 7 March, the Daphne Caruana Galizia Foundation labelled the anti-SLAPP proposal by the Swedish Presidency “a useless instrument” and called on the government of Malta to commit publicly to implementing anti-SLAPP legislation in Malta that sets an even higher standard than that proposed by the original anti-SLAPP Directive.