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 falsely claiming defamation or invasion of privacy. A summary and update of the proposal was previously reported by Wiggin on 7 December 2023.

On 30 November 2023, the negotiators for the European Parliament and Council reached provisional agreement on the terms of the Directive. On 27 February 2024, the European Parliament formally adopted that text, which has now been published.

Some of the changes made by the co-legislators to the Commission’s original proposal include extending the concept of “public participation” to statements or activities carried out in the exercise of freedom of the arts and sciences and freedom of assembly and association, as well to freedom of expression and information. The co-legislators have clarified that, while SLAPPs are limited to civil proceedings, the “public participation” statement or activity which is the subject of the SLAPP claim can include allegations of a criminal offence such as fraud or corruption. The examples of indicators of what constitutes “abusive court proceedings against public participation” now include intimidation, harassment or threats by the claimant “as well as similar conduct… in similar or concurrent cases” and the use of bad faith procedural tactics such as delaying proceedings, fraudulent or abusive forum shopping or discontinuation of proceedings at a late stage in bad faith. The co-legislators have sought to simplify the provision which provides that the Directive only applies to SLAPPs with “cross-border implications.” New provisions are added to require Member States to provide legal aid in cross-border civil proceedings, and to ensure that potential victims of SLAPPs can access information, in a single place, on procedural safeguards, remedies and support measures (e.g. legal aid and financial and psychological support).

On costs, the co-legislators have widened the basis on which the court can order the claimant in a SLAPP claim to provide security for costs and damages early on in a claim. Further, on the provision allowing the court to order the claimant to pay the costs of abusive court proceedings against public participation (including the defendant’s legal representation costs) unless excessive, the co-legislators have provided that, where national law does not guarantee the award in full of costs of legal representation beyond what is set out in statutory fee tables, Member States shall ensure such costs are fully covered by other means under national law.

Once the Council of the EU formally approves the text, the Directive will be published in the Official Journal of the EU. Member States will have two years to implement the Directive into national law.

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