The EU’s Anti-SLAPP Directive: A Partial Victory for Rule of Law Advocacy in Europe

The 2024 article The EU’s Anti-SLAPP Directive: A Partial Victory for Rule of Law Advocacy in Europe authored by Justin Borg-Barthet and Francesca Farrington, provides a brief yet comprehensive overview of the object, background, development, as well as of the impacts and inherent limitations of the Directive EU 2024/1069 on protecting persons who engage in public participation from manifestly unfounded claims or abusive court proceedings.

First, after a brief introduction (Section A) the authors engage in a conceptual unpacking of the notion of a SLAPP, specifying its distinctive features that, along with its specific purposes inform its underlying logic - elements that set it apart from strategic litigations tout court (Section B).

• lawsuit or threat thereof
• relation with public interest matter
• abusive litigation tactics from claimant(s)
• financial or psychological burden on respondent(s)
• stifling aim or effect on public interest discourse

The normative ambiguity surrounding the concept of ‘strategic litigation’ is thus briefly explored, as the framing of SLAPPs as «abusive court proceedings against public participation» is deemed preferable in order to avoid a legitimation of sorts. Similarly, the authors prefer employing the notion of lawfare, conceptualised in Handmaker (2019) as an illegitimate form of legal instrumentalism – in contrast to that of legal mobilisation as a form of legitimate counterpower.

The authors then trace the historical and legal trajectories leading to the development of the EU Anti-SLAPP Directive (Section C), highlighting the main debates and key moments informing them, in particular reference to the early controversies around the EU competence to legislate in the area, as well as to the initial institutional resistance. It is therefore recalled that the murder of Maltese journalist Daphne Caruana Galizia acted as a catalyst for academic and political debate – mainly at a grassroots level – to focus on the chilling effects of vexatious litigations on information in the European context, prompting a deeper examination of the EU legislative framework in the area of freedom of expression, as well as a broader recognition of the phenomenon of SLAPPs, its potential targets, and its impact on the whole civil society.

In this context, Borg-Barthet & Farrington stress the crucial role of legal mobilisation in prompting change, through the engagement of academia, related NGOs, as well as political exponents – namely a small group of MEPs –, to the emergence of a broader network in the Coalition Against SLAPPs in Europe (CASE). Such partnership allowed for the overcoming of the aforementioned institutional resistance through advocacy efforts as well as the provision of evidence-based academic research which in turn led to a shift in prevailing institutional positions, thus providing the required momentum for the drafting of the Anti-SLAPP Directive.

As the authors briefly note, the European Commission opted for a legal foundation constructed on Art.81 TFEU allowing the EU to legislate on judicial cooperation in civil matters with cross-border implications – rather than on Art.114 TFEU, which granted EU legislative competence on matters required to ensure the functioning of the internal market – which necessarily limited the scope of the Directive to cases presenting a cross-border dimension, albeit under a relatively broad definition.
In relation to the above, the problematic character of criminal matters as well as of those pertaining administrative law is highlighted, particularly in reason of a significant quota of SLAPP cases initiated under claims of a criminal offence as for the former, while the latter is rather connected to the risks of executive powers being deployed i.e. «to suppress scrutiny of the executive itself» – it is on this matter recalled that the recognition of those shortcomings from the part of the Commission informed its Recommendation to suggest implementation of national provisions extending protection and remedies to the domestic legal framework, as well as on all matters, including criminal and administrative proceedings.

The paper proceeds to explore common procedural safeguards (Section D) aimed at a power rebalancing of sorts through cost-shifting measures as well as through the option of an early dismissal for manifestly unfounded court proceedings, while calling for member states to consider these protections as a minimum standard. It is noted that, despite its inherent limitations, the Directive provides significant cost-shifting measures, from the requirement of security for estimated costs of the action or damages for the claimant to the provision of legal aid for the defendant; further protection is granted through the provision of an amicus curiae intervention.

The private international law dimension of SLAPPs is also briefly discussed (Section E), as Borg-Barthet & Farrington stress on the potential of private international law to be leveraged on to increase the cost burden placed on the defendant in both financial and psychological terms, as some claimants might still exploit it to engage in self-serving practices at the expense of the defendant, even enabling forum shopping in some instances. In particular, the protection against «third country SLAPPs» is deemed still unsatisfactory and it is pointed out that, in the case of «matters of political concern to European governance», there still is a chance for the case to be forced out of the scope of the Directive. In other terms, the potential amplification of the power imbalance is not countered in full, as the Directive fails to remove the systemic vulnerabilities in place.

In their conclusion (Section F), however, the authors stress on the strong significance of the Anti-SLAPP Directive, other than for its role in providing protection – albeit imperfect – against SLAPP actions, for the effective legal mobilisation that brought it to the political agenda of EU institutions; the provision of «strong evidence-based, solution-driven research», integrated with consistent «advocacy campaigning», effectively shifted the focus on the issue prompting for legal change. However, Borg-Barthet & Farrington bring to the forefront the importance of keeping the momentum of these mobilisation efforts in order not to see them waning in the critical transposition phase, which remains crucial particularly in light of the significant limitations that are contained in the Directive, which need national as well as regional mobilisation to shed light on and ensure proper protection against SLAPPs.