CIVICUS speaks with Francesca Borg Costanzi, Advocacy Officer at the Daphne Caruana Galizia Foundation, about the recently adopted European Union (EU) Anti-SLAPP Directive and its importance in preventing abusive lawsuits against public watchdogs.
Established to seek justice for murdered journalist Daphne Caruana Galizia, the Daphne Caruana Galizia Foundation is a civil society organisation that advocates for press freedoms and liberal democracy and combats populism, corruption and impunity worldwide.
What are SLAPPs, and why are they a problem?
SLAPPs, short for strategic litigation against public participation, are, as defined by the EU Committee of Ministers’ draft recommendation on countering the use of SLAPPs, ‘legal claims, proceedings and other actions brought in relation to public participation and expression on matters of public interest that have as their main purpose to prevent, restrict or penalise the exercise of rights associated with public participation’.
In other words, they are a means for the powerful to weaponise the law to harass, intimidate, warn and dissuade people from exercising their rights. The claimants’ strategic aim is to silence criticism. SLAPPs suppress the civic freedoms of assembly, association and expression, and undermine the public’s right to know. They supress information that is in the public interest and inflict financial and psychological harm on defendants due to prolonged and costly court battles and the burden of intimidation that comes with legal action.
Concerningly, the use of SLAPPs is on the rise. According to the 2023 SLAPP report published by the Coalition Against SLAPPs in Europe (CASE) in May 2023, the number of SLAPPs across Europe jumped from 570 in 2022 to 820 in 2023. Early indications suggest the upward trend continues in 2024.
What is the Anti-SLAPP Directive?
The EU Anti-SLAPP Directive was adopted by the European Parliament on 27 February to set out minimum standards for anti-SLAPP laws that member states must now transpose into their national legislation. The directive covers SLAPP cases with a cross-border element, irrespective of where the plaintiffs and defendants are based.
When the directive was first launched by the European Commission in April 2022, the Commission’s Vice-President for Values and Transparency Věra Jourová referred to it as ‘Daphne’s Law’, in honour of murdered journalist Daphne Caruana Galizia, who at the time of her death in 2017 faced 48 criminal and civil libel suits, most of which her family inherited. The package of measures was a fulfilment of a promise the Commission made to Daphne’s family and broader civil society to protect public watchdogs including journalists, human rights defenders and activists working to hold the powerful to account.
The directive was accompanied by a recommendation for member states that came into effect at the time of its launch, urging complementary measures including legislative steps to address purely domestic SLAPPs and providing training for the judicial and legal profession.
How were you involved in negotiations?
The Daphne Caruana Galizia Foundation is a founding member of CASE, which has been actively involved in shaping the Anti-SLAPP Directive at every stage. Our experts prepared a policy brief that was used in advocacy efforts with rapporteurs from the three parliamentary committees involved and civil society representatives.
Members of our national working groups engaged with EP members to advocate for CASE’s proposed amendments and discuss implementation at the national level. This collaborative effort resulted in key committee opinions that included most of CASE’s proposed amendments.
The Daphne Caruana Galizia Foundation contacted all EU member governments to explain the importance of anti-SLAPP measures, and the Foundation’s director, Matthew Caruana Galizia, held individual meetings with the ministers of justice and permanent representatives of several EU member states to advocate for the EU’s proposed directive and recommendation.
When the EP drafted its final opinions and the responsibility passed to the EU Council to draft a compromise text, CASE members organised meetings with permanent representations and ministers of justice from key countries to push for them to include CASE’s amendments in their final text.
Despite some proposals being excluded in the EU Council’s compromise text, CASE continued its advocacy efforts during negotiations in July 2023. We prepared a document outlining which institution’s version of each article would be the strongest and used this document in advocacy meetings with those involved in the negotiations. We also drafted briefing notes on the three most important components of the Anti-SLAPP Directive: its early dismissal mechanism, its definition of what constitutes cross-border and its provisions of remedies. These were sent to key stakeholders in the three EU institutions involved in the negotiations.
CASE’s advocacy was made possible by the consistent work of experts and the relationships established and maintained with key stakeholders in EU institutions.
To what extent did the recently adopted draft respond to civil society’s concerns?
The adopted text addresses some of civil society’s concerns and has moved forward considerably from the EU Council’s original compromise text adopted in June 2023, particularly considering some of the key components of the final text, such as the early dismissal mechanism, the cross-border definition and compensatory damages.
CASE welcomed the adoption of the Anti-SLAPP Directive, emphasising it as the minimum standard for protecting public watchdogs against SLAPPs. It is now up to member states to go beyond these parameters and transpose them into national legislation to effectively safeguard journalists, human rights defenders and activists working to hold power accountable.
The Council of Europe’s Anti-SLAPP Recommendation further complements anti-SLAPP measures by setting out important guidelines for anti-SLAPP legislation that also cover Council of Europe countries, not just EU member states. Civil society will be able to monitor the introduction of anti-SLAPP legislation in various countries and ensure these provide the maximum possible protection.
What else needs to be done to safeguard civil society’s watchdog role in the region?
Member states must introduce national anti-SLAPP legislation to protect public watchdogs. CASE will advocate for the proper transposition of the EU Directive by liaising with civil society members engaged in national advocacy. We will also focus on ensuring the adoption of the Committee of Ministers’ Recommendation and adherence to it by Council of Europe member states when drafting anti-SLAPP legislation. Our attention is now shifting to the national level, particularly jurisdictions where there is considerable resistance to the anti-SLAPP Directive. Transposition of the directive will remain our focus for the immediate and foreseeable future.
Get in touch with the Daphne Caruana Galizia Foundation through its website or Facebook and LinkedIn pages, and follow @FrancescaBorgC2 and @daphnefdtn on Twitter.
