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Anti-SLAPPs Directive: a step in the right direction. 

 

The new legal tool only introduces minimum safeguards: it’s now up to Member States to transpose the new rules ensuring a comprehensive and meaningful protection for the victims of SLAPPs as well as freedom of expression and information.

Introduction

The European Parliament formally adopted, during the last February plenary session held in Strasbourg, the anti-SLAPPs (Strategic Lawsuits Against Public Participation) Directive, which it has also been referred to as Daphne’s law from the name of the Maltese journalist, Daphne Caurana Galizia, who was murdered in 2017. The adopted text is the result of the compromise that both Parliament and Council struck in November 2023, one year and half later the Commission published the proposal. Now, the text needs to be formally adopted by the Council, this will normally happen in March, and published in the Official Journal.

The Directive aims at introducing minimum standards against manifestly unfounded and abusive civil or commercial claims, with cross-border dimension, brought against people who engaged in public participation activities, therefore exercising their fundamental rights to freedom of expression and information, freedom of the arts and sciences, or freedom of assembly and association.

A relevant legislation for Wikipedia

The adoption of the Directive by Parliament is very good news not only for journalists, human rights defenders and civil society organisations, but also for Wikipedians, who can be the target of abusive lawsuits. Take for instance the case of Ivo Kruusamägi, an Estonian fellow Wikipedian who has been recently sued for having edited an article about the pension reform that came into force in 2021 in his Country. Or the Portuguese case, which is still ongoing, where the global businessman César do Paço sued Wikimedia Portugal together with some Portuguese Wikipedians because he didn’t like the Portuguese and English Wikipedia versions of his biography, where volunteers included well sourced and reliable information about his right-wing political affiliations and past criminal accusations. Volunteers considered Mr. do Paço a public figure and therefore the information about his life was considered relevant and important for the public opinion. 

Yet, how to forget the abusive lawsuit that the Angelucci Brothers brought against Wikimedia Italia and the Wikimedia Foundation in 2009, asking 20 million euros of damages, on the grounds that some of the information reported in two Italian Wikipedia articles was defamatory.
These are just a few examples of SLAPP cases that Wikipedians have faced for their editing activity. The newly adopted rules would hopefully offer some protection against this kind of situations, thus Wikimedia Europe welcomes the adoption of the new Directive. Being SLAPPed can be very painful, not only in economic terms but also psychologically and mentally. 

What are the protections?

Firstly, it is useful to highlight that the new rules will only apply to civil or commercial matters, with cross-border dimension, thus excluding criminal or administrative matters that remain of exclusive competence of Member States.

Concerning the new protections, there are obligations for Member States to treat SLAPP cases in an accelerated manner, the possibility for associations, trade unions or other entities to support the defendant in court proceedings or the possibility for the Court to ask the claimant for a security for the estimated costs of the proceedings. Furthermore, it is established that the burden of proof stays with the claimant, also in the circumstance the defendant asked for an early dismissal of the case, as well as the possibility to refuse the recognition and enforcement of third-country judgements considered abusive (together with the possibility to ask for compensation in a European court for the abusive claims brought against before a Court in a third-country).

Moreover, there are three major aspects, on which we focused our attention within CASE (Coalition against SLAPPs in Europe), that deserve to be mentioned:

Early dismissal mechanism: the Directive foresees the possibility for Member States to introduce the right for the defendant to ask for an early dismissal of the case. This is a fundamental achievement as abusive lawsuits are quite burdensome for defendants and at the same time ingulf the administration of justice. Here can be found a more detailed analysis of the legal text.

Definition of cross-border dimension: being the Directive based on Article 81(2)(f) TFEU, the EU has the competence to legislate only on civil matters that present cross-border implications. In this sense, a broad definition of the cross-border notion can expand the protection of the new provisions. This is what we tried to achieve, especially considering the digital dimension of the acts of public participation and the ubiquitous nature of the Internet. Here is a more detailed analysis for those who want to learn more.

Compensation of damages: The possibility for the victims of SLAPPs to ask for compensatory damages represent a powerful deterrent for making desist potential claimants. The Directive foresees on the one hand, the obligation for Member States to introduce the possibility for the defendant to ask for the award of the costs suffered; and on the other hand, it establishes that Member States introduce the discretionary power for the Court to impose penalties on the claimant, including the compensation for damages. For a detailed analysis of the main legal provisions here is the link.

The transposition & the Council of Europe Recommendation

Once that Directive enters into force, Member States will have two years time to transpose it into their national legal framework. This is going to be a crucial period during which Wikimedia Europe wants to engage in advocating for an ambitious transposition of the new rules. Indeed, the Directive establishes harmonised minimum requirements, leaving room for Member States to adopt more protective rules. Take for instance the possibility to apply the safeguards foreseen by the Directive to pure domestic cases or the introduction of a right to compensatory damages fully covering the extent of harm, including physical, psychosocial, and reputational harm, suffered by targets of SLAPPs. Or further, the possibility for Member States to introduce the obligation to stay the main proceedings when the defendant asked for an early dismissal (this provision was in the original proposal of the Commission, but Council successfully asked for its deletion) as well as an automatic early dismissal mechanism when a claim is found not only manifestly unfounded, but also abusive.

In transposing the provisions of the new Directive Member States can prove their commitment to effectively safeguard the targets of SLAPPs, thus showing their concrete willingness to defend democracy and substantiate fundamental rights such as freedom of expression. The transposition exercise can find further guidance in the Recommendation that the Council of Europe is supposed to adopt in the near future, which has a broader scope than the directive – e.g. it also deals with criminal and administrative proceedings and specifically mentions SLAPPs against anonymous public participation, where the claimant seeks the disclosure of the identity of the defendant (this is can be of particular relevance for Wikipedians). 

Conclusion

If Europe wants to effectively and substantially safeguard its values and democracy, which in order to thrive needs a fully and properly informed public opinion, it has to be equipped with strong rules against SLAPPs. The EU Institutions made their part, it is now the turn of Member States to show all their ambition when transposing the Directive. Wikimedia Europe will closely monitor the transposition process and will advocate for a strong protection of SLAPPs targets as well as of freedom of expression and other fundamental rights.