On April 27, 2022, the European Commission published a proposal for a Directive on protection against Strategic Lawsuits Against Public Participation (SLAPPs). SLAPPs are court proceedings initiated against persons who engage in public participation on matter of public interest to deter them by intimidating them and draining their resources. Such lawsuits are often initiated by powerful entities such as lobby groups, corporations, and state organs, and they often involve an imbalance of power – financial or political – between the claimant and the defendant. SLAPPs are typically disguised as civil or criminal claims such as defamation and constitute a threat to the right to freedom of expression and information.
Procedural safeguards
As SLAPPs constitute an abuse of the legal system as they typically involve litigation tactics used in bad faith such as delaying proceedings, the proposal provides several procedural safeguards to counter such tactics.
First, defendants must be able to apply for a request for a security to cover procedural costs and/or damages (Article 8). It should be for Member States to decide whether a security should be ordered by the court on its own motion or upon request by the defendant.
Second, defendants must be able to apply for a request for an early dismissal (Article 9). When early dismissal has been requested, the burden of proof lies on the claimant in the main proceedings to prove that the claim is not manifestly unfounded (Article 12). The decision on early dismissal must be subject to an appeal (Article 13).
Third, defendants must be able to apply for a request for remedies (Article 15). Full compensation of damage should include both material and immaterial damages such as psychological harm. Further, claimants can be ordered to bear all the costs of the proceedings, including defendant’s legal costs (Article 14) and can be imposed penalties (Article 16).
Special ground of jurisdiction
To ensure targets of SLAPPs domiciled in the EU have remedies available to them, the proposal provides that they can seek in their country of domicile compensation of the damages and costs related to the proceedings irrespective of the domicile of the claimant (Article 18).
Finally, the proposal provides grounds for refusal of recognition and enforcement of a third country judgement would the proceedings been considered abusive in the EU (Article 17).
Application to business & human rights
Between 2015 and mid-2021, globally, 355 cases (criminal, civil or both) that bear the hallmarks of SLAPPs and brought or initiated by business actors were identified. Out of 105 civil cases, 67% were brought in Europe. Notably, this proposal will provide protection to those pointing out companies failing to prevent and mitigate human rights abuses in line with the future Directive on human rights and environmental due diligence.