Protection of SLAPP targets should not hinder access to justice, say member states

European Union member states want to ensure that the right balance is reached between protecting SLAPP targets and ensuring that access to justice is not hindered.

On Friday, the European Union Ministers of Justice discussed the progress of negotiations on the proposed directive to combat SLAPPs.

Strategic lawsuits against public participation, commonly known as ‘SLAPPs' are used primarily to prevent or penalise talk on public interest issues.

The European Commission had proposed legislation to prevent and penalise cross-border civil lawsuits meant to harass journalists and human rights defenders.

All member states stressed the importance of ensuring the right of access to justice. “We have to avoid extremists using SLAPPs as a way to reject pursuit of legitimate claims”, said Germany.

“Such a legislative act should never work against people who have reasonable claims such as those facing hatred spreads on the Internet”.

Malta's Justice Minister Jonathan Attard said that the country is in favour of the directive and said that the government was committed to implementing it into law, once more feedback was provided by the Media experts committee.

"We want to ensure that our country protects journalist and all those that have a role in media," Attard said.

Some member states put forward solutions that have been proven at a national level, like Belgium, which believes that capping the legal costs to be paid by the person who loses a case, does not deter a plaintiff from going to court.

Lithuania, on the other hand, has suggested “allowing the suspension for an action at an early stage [while] not precluding the possibility of reapplying to the court once the action has been revised [allows] a balance between rights”.

However, the possibility of quickly dismissing “obviously” abusive procedures has been a major concern for ministers. “Regarding early dismissal, we should avoid creating an instrument that hinders the right to a fair trial”, Hungary warned.

Slovenia is of the opinion that not all European countries have the same interpretation of “early dismissal”, and Poland and France argued that it should be up to the member states, and therefore to national courts and legislation, to determine whether a complaint can qualify for early dismissal.

Bulgaria, Germany, Croatia, Slovakia, and Luxembourg have insisted on the need for a judge to be able to examine “the case in detail before dismissing it as manifestly unfounded”.

In the minority, others, including Lithuania, argued that “such abusive proceedings should be stopped as early as possible”.

With regards to the scope of the directive, Poland and Hungary insisted that it should be limited to “cross-border cases” and should not therefore concern cases where both parties are resident in the same country.

Slovenia, Croatia, and Poland welcomed the agreement between member states to exclude those who disseminate false information from the directive.

France noted that a major part of French SLAPP proceedings are “criminal defamation proceedings and do not, therefore, fall within the scope of this Directive”.

With the exception of Estonia and Finland, who are not very enthusiastic about the idea of European legislation on the subject, member states have made it clear that they are in favour of the directive but that they want to have the time to “balance it”.

European Commission Vice-President Věra Jourová said she understood the concerns of member states but asked them to “remain ambitious and not to vote against the main features of the proposal” while expressing the hope that a first political agreement would be reached under the Swedish Presidency of the EU Council.