Anti-SLAPP: Advice to the European Commission

We welcome the European Commission’s commitment to address the threat of vexatious litigation against journalists, activists and others, and have joined 25 other NGOs proposing a number of short to medium term measures in a letter to the Directorate-General Justice and Consumers.

We are publishing the letter and attached legal advice.

Across the European Union, the documented incidence of Strategic Lawsuits Against Public Participation (SLAPP) alone is shocking, but there is far more that is erased from the public domain. Powerful economic actors are able to weaponise the law, resulting in a chilling effect on public interest activity, the suppression of scrutiny, and the weakening of the rule of law in the European Union.

Redressing deficiencies in existing EU private international law and introducing harmonising measures to ensure that fundamental rights are upheld in the Member States would create an enabling environment for a vibrant democracy in the European Union.

Specifically, in order to (i) protect the rights of citizens, journalists, activists, academics, trade unionists, media organisations and NGOs, as well as (ii) their ability and obligation to supplement and enable enforcement of the law of the European Union, the following matters require urgent attention:

  • In the first instance, and as a matter of urgency, the Brussels I Regulation (recast) requires amendment with a view to grounding jurisdiction in the domicile of the defendant in matters relating to defamation. This would remove the facility for pursuers to abuse their ability to choose a court or courts which have little connection to the dispute;

  • The omission of defamation from the scope of the Rome II Regulation requires journalists to apply the lowest standard of press freedom available in the laws which might be applied to a potential dispute. We recommend the inclusion of a new rule which would require the application of the law of the place to which a publication is directed;

  • Furthermore, a Directive should be adopted to introduce procedural safeguards with a view to limiting the availability of SLAPPs against journalists, activists and citizens. The absence of such measures constitutes a significant threat to the integrity of the internal market, as well as the proper functioning of the Union’s institutional order. Examples of good practice in the European Union and elsewhere should be considered in order to establish minimum standards throughout the Union.

  • Finally, budgetary measures to morally and financially support all SLAPPs victims should be part of the available help.

The rationale and legal basis for the adoption of the proposed legal measures is explained more fully in advice which Article 19, Committee to Protect Journalists (CPJ), European Centre for Press and Media Freedom (ECPMF), Reporters Without Borders (RSF), and PEN International commissioned from the Centre for Private International Law at the University of Aberdeen.

The letter was signed by:

  • Article 19
  • Articolo 21
  • Association of European Journalists (AEJ)
  • Cartoonists Rights Network International (CRNI)
  • Committee to Protect Journalists (CPJ)
  • Danish PEN
  • Daphne Caruana Galizia Foundation
  • English PEN
  • European Centre for Press and Media Freedom (ECPMF)
  • European Federation of Journalists (EFJ)
  • Free Press Unlimited (FPU)
  • German PEN
  • Global Forum for Media Development (GFMD)
  • Greenpeace EU Unit
  • IFEX
  • Index on Censorship
  • International Press Institute (IPI)
  • Legal Human Academy
  • Norwegian PEN
  • Osservatorio Balcani e Caucaso Transeuropa (OBCT)
  • PEN International
  • Reporters Without Borders (RSF)
  • Scottish PEN
  • South East Europe Media Organisation (SEEMO)
  • Swedish PEN
  • Transparency International EU