On 27 April 2022, the European Commission presented its proposals “to improve the protection of journalists and human rights defenders from abusive litigation.” These proposals are intended to prevent so-called “strategic lawsuits against public participation” or “SLAPP lawsuits”.
The EU Commission understands this to comprise civil lawsuits, particularly against journalists and human rights activists, aimed at preventing publications on matters of public interest. The EU Commission press release states:
“A tragic example of the use of SLAPP is the [Maltese] journalist Daphne Caruana Galizia who was facing more than 40 lawsuits at the time of her assassination in 2017. The aim of SLAPPs lawsuits is not to access justice but to harass, intimidate and silence defendants with the length of procedures, the financial pressure and the threat of criminal sanctions. Journalists are not the only targets; human rights defenders and civil society organisations, especially those working on human rights and the environment also face SLAPP.”
Proposed Directive Against SLAPP
The EU Commission describes the policy behind the proposed directive as follows:
“The proposed Directive provides courts and targets of SLAPPs with the tools to fight back against manifestly unfounded or abusive court proceedings. The proposed safeguards will apply in civil matters with cross-border implications. The safeguards are expected to benefit in particular journalists and persons or organisations engaged in defending fundamental rights and a variety of other rights, such as environmental and climate rights, women’s rights, LGBTIQ rights, the rights of the people with a minority racial or ethnic background, labour rights or religious freedoms, but all persons engaged in public participation on matters of public interest are covered. The safeguards have been targeted to ensure the balance of access to justice and privacy rights with the protection of freedom of expression and information.”
The proposed directive only covers SLAPP actions in civil matters with cross-border implications. However, Member States are encouraged to align their rules for domestic cases with the proposed EU rules.
Key Elements of the Proposal
In its press release, the EU Commission highlights five core elements of its proposal. One of the elements, compensation of damage suffered as a result of the lawsuit (sse Article 15 Draft Directive), is of a substantive nature. The other four elements relate to procedural law:
Early dismissal of a manifestly unfounded court proceedings
The core of the draft directive is the right of the defendant to apply for a prompt dismissal of a SLAPP. To this end, national procedural law is to provide that defendants may file a motion for “early dismissal of manifestly unfounded court proceedings” (Article 5 para 1 (b) Draft Directive). Courts shall have the power to “to adopt an early decision to dismiss, in full or in part, court proceedings against public participation as manifestly unfounded” (Art. 9 para. 1 Draft Directive). To this end, an expedited procedure is to be made available (Art. 11 Draft Directive). The draft directive provides for a shift in the burden of proof: If a defendant has filed an application for early termination, “it shall be for the claimant to prove that the claim is not manifestly unfounded” (Art. 12 Draft Directive).
The concept of early dismissal “a limine” is alien to German law of civil procedure. It does not provide for a summary examination that would allow an early dismissal of the action on the merits. Such a mechanism exists at the appeal stage, that is, the second instance with the possibility of dismissal of the appeal under Section 522 para. 2 German Code of Civil Procedure (Zivilprozessordnung, ZPO) if in a panel of three judges, “all of its members are unanimously satisfied that the appeal manifestly has no chance of success.”
First, defendants must have the right to apply for security from claimant (i) for the costs of proceedings or (ii) for the costs of proceedings and damages (Art. Draft Directive.). This would require a modification of Sec. 110 para. 1 ZPO). Security with respect to procedural costs is familiar to German law; with respect to security for a substantive claim for damages, this would be an innovation.
Second, Member States must ensure that a claimant who has brought abusive legal proceedings against public participation is ordered to pay the full costs of the proceedings, “including the full costs of legal representation incurred by the defendant, unless such costs are excessive.” (Art. 14 Draft Directive). If this means that, for example, internal expenses of the defendant and legal fees beyond the German remuneration schedule for lawyers (Rechtsanwaltsvergütungsgesetz, RVG) must be recoverable, this would be a fundamental change to the German concept of reimbursement of costs.
Art. 16 Draft Directive requires Member States to enable courts to impose “effective, proportionate and dissuasive penalties on the party who brought those proceedings” in the event of an abusive claim. Currently, German civil procedure law does not give courts the ability to impose any penalties or sanctions on a party. The closest thing in German law is probably the fee for abusive proceedings (Missbrauchsgebühr) that the Federal Constitutional Court (Bundesverfassungsgericht) can impose. However, the maximum fee of EUR 2,600 provided for in Section 34 BVerfGG is highly unlikely to be an effective deterrent in the context of SLAPP. By introducing other penalties, German procedural law would enter previously uncharted territory.
Protection Against Third-country Judgments
Finally, there is the issue of recognition of foreign judgments. Member States are to ensure that judgments from a third country are refused recognition “if those proceedings would have been considered manifestly unfounded or abusive if they had been brought before the courts or tribunals of the Member State where recognition or enforcement is sought and those courts or tribunals would have applied their own law.” (Art. 17 Draft Directive). Here, the concept of public policy (ordre public) in Section 328 para 1 no. 4 ZPO would probably need to incorporate the SLAPP legislation directly or indirectly.
Food for Thought
The first impression on reading the draft directive: The implementation of this directive would affect essential principles of German civil procedural law and procedural culture. Comparative lawyers use the term “legal transplants” to describe the situation that legal concepts from foreign legal systems are incorporated into a legal system. The implementation of the directive would appear to require German law to incorporate “legal transplants” at various points. This should be done only after careful empirical validation of their necessity and with restraint – transplants come with risks and side effects.
In some places, there will be a desire to incorporate some of the concepts contained in the directive into German law beyond the scope of the SLAPP. Depending on their role in a given litigation, many a (German or continental) reader will have wished for a procedure for the early dismissal of manifestly unfounded or abusive claims – but as the experience with Section 522 ZPO has shown, such a procedure is a sharp and sometimes too sharp a sword.
The EU Commissions policy aims are laudable und absolutely justfied. Bute the Commission should be careful not overshoot and let the legal adage “hard cases make bad law” be a warning.