In 2022, the European Commission published a proposed Directive to protect persons engaged in public participation from manifestly unfounded or abusive court proceedings, generally known as “strategic lawsuits against public participation” or “SLAPPs”. SLAPPs are a tool used by wealthy individuals to intimidate and financially burden those who seek to expose their wrongdoing, such as threatening exorbitant legal costs in suits brought against journalists or human rights defenders which falsely claim defamation or invasion of privacy.

Under the proposed Directive, “public participation” is defined as a statement or activity by a person (individual or entity) expressed or carried out in the exercise of the right to freedom of expression on a matter of public interest, including in the form of complaints, petitions, judicial claims or participation in public hearings. “Public interest” is defined non-exhaustively to include areas such as public health, environment, corruption, fraud or criminality, disinformation and the activities of a person in the public eye or of public interest.

The protections set out in the Directive apply to those who are the subject of “abusive court proceedings against public participation”, that is, where the proceedings are fully or partially unfounded and their main purpose is to prevent, restrict or penalise public participation (e.g. by way of disproportionate, excessive or unreasonable claims, multiple claims in relation to similar matters, or intimidation, harassment or threats from the claimant). The Directive only applies to proceedings with cross-border implications which will be the case unless the parties are domiciled in the same EU Member State or, if they are, the public interest matter is relevant in more than one Member State or the claimant has brought proceedings against the defendant in another Member State.

The protections provided to in-scope defendants include an obligation on Member States to ensure that when court proceedings are brought against a person on account of their engagement in public participation and where elements of an abusive claim are present, they can ask the court to order the claimant to provide security for costs and damages. The courts must also be empowered to dismiss proceedings against public participation where they are manifestly unfounded. Finally, the Member States must ensure that a person who has brought an abusive claim can be ordered to pay all the costs of the proceedings, including those of the defendant, that the defendant can claim compensation for any harm suffered from the abusive claim, and that the courts can impose penalties against claimants bringing abusive proceedings.

On 30 November 2023, the European Parliament and Council concluded their trilogue negotiations and reached a provisional agreement on the terms of the Directive. The wording of the agreement will be finalised over the coming weeks but, according to reports, certain changes to the Commission’s original text have been agreed including in relation to the definition of cases with “cross-border implications”. Once the text is finalised, it will then need to be formally adopted by Parliament and the Council.

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