“Daphne’s Law”: The European Commission introduces an anti-SLAPP initiative

 

Professor Justin Borg-Barthet, University of Aberdeen*

*Advisor to a coalition of press freedom NGOs on the introduction of SLAPPs, co-author of the CASE Model Law, lead author of a study commissioned by the European Parliament, and member of the Commission's Expert Group on SLAPPs and its legislative sub-group

 

Background

 

When Daphne Caruana Galizia was assassinated in Malta on 16th October 2017, 48 defamation cases were pending against her in Maltese and other courts. Daphne was at the peak of her journalistic powers when she was killed, producing a seemingly endless exposé of criminality involving government and private sector actors. Naturally, those she was exposing did not take kindly to the intrusion on the enjoyment of the fruits of their labour. Courts which offered few meaningful safeguards against vexatious litigation presented a nominally legitimate forum in which they would seek to exhaust and punish Daphne and to ensure that others did not engage in similar investigations. Most of these cases were inherited by her sons, whose grief was interrupted constantly by a need to appear in court in defence of their mother’s work.

 

The scale of abusive litigation which Daphne endured prompted several NGOs to look more closely at the phenomenon of SLAPPs. Strategic Lawsuits Against Public Participation, a term coined in American academic circles, are lawsuits intended not to serve the legitimate purpose of pursuing a claim against a respondent, but instead to use court procedure to suppress scrutiny of matters of public interest. The direct costs, psychological strain, and opportunity costs of defending oneself in court are intended to coerce retraction of legitimate public interest activity, and to have a chilling effect on others who might show an interest. While most SLAPPs are framed as defamation claims, there is also a growing body of abusive litigation which suppresses public participation using the pretext of other rights such as privacy and intellectual property.

 

In response to the growing SLAPP phenomenon, several US States, Canadian provinces and Australian states and territories have introduced anti-SLAPP statutes. Typically, these statutes provide for the early dismissal of cases, and include cost-shifting measures to compensate SLAPP victims and to dissuade claimants. No EU Member State has yet adopted similar laws. Prompted by Daphne’s experience, European NGOs and MEPs became increasingly aware of the alarming incidence of SLAPPs throughout Europe. They then set out to identify and advocate for legal solutions in the European Union.

 

Initially, the European Commission resisted calls for the introduction of anti-SLAPP legislation, citing a lack of specific legal basis. As the legal and statistical research bases for NGO advocacy evolved further, and following a change in the Commission’s political leadership, the Commission’s assessment changed. This culminated in the introduction of a package of anti-SLAPP measures on 27th April 2022, including a proposed anti-SLAPP Directive which Vice-President Jourova dubbed “Daphne’s Law”.

 

The legislative proposal is based, in part, on a Model Law which was commissioned by the Coalition Against SLAPPs in Europe (CASE), a grouping of NGOs established to further the research basis and advocacy for anti-SLAPP laws in Europe. That Model Law is itself inspired by anti-SLAPP statutes adopted in the United States, Canada and Australia, but accounts for divergent continental legal traditions, and benefits from extensive consultation with experts and practitioners in Europe and elsewhere.

 

Legal Basis and Scope

As noted above, the key barrier for NGOs and MEPs to persuade the Commission to initiate anti-SLAPP legislation was disagreement about whether the EU had competence to act in this area. Subsequently, however, the Commission recognised the internal market relevance of SLAPPs, as well as adopting a more strident approach to the rule of law and human rights implications of SLAPPs. Arguments concerning a legal basis included an approach based on numerous treaty articles (as in the Whistleblowers’ Directive), reliance on the internal market effects of SLAPPs (Article 114 TFEU) as in the Model Law, and the potential use of treaty provisions on cross-border judicial cooperation. Ultimately, in view of Member States’ expected resistance to intervention in domestic procedural law, the Commission’s draft proceeds on the basis that Article 81 TFEU confers competence in respect of judicial cooperation in civil matters.

 

The orthodox view of Article 81 TFEU presupposes an international element to matters falling within its scope. It was therefore incumbent on the drafters to constrain the scope of the proposed directive to cases having a cross-border dimension. The Commission’s proposal begins with a classic private international law formulation which refers to the domicile of the parties. A case lacks cross-border implications if the parties are both domiciled in the Member State of the court seised. This, however, is subject to a far-reaching caveat in Article 4(2):

 

Where both parties to the proceedings are domiciled in the same Member State as the court seised, the matter shall also be considered to have cross-border implications if:

a)      the act of public participation concerning a matter of public interest against which court proceedings are initiated is relevant to more than one Member State, or

b)      the claimant or associated entities have initiated concurrent or previous court proceedings against the same or associated defendants in another Member State.

 

The Commission’s proposal adopts an innovative formulation, the breadth of which is commensurate to the internal market and EU governance implications of SLAPPs. Given the EU’s interconnectedness, it is paramount that the law account for the fact that cross-border implications do not flow only from the circumstances of the parties but also from transnational public interest in the underlying dispute.

 

The broad scope could be extended further if and when Member States come to transpose the proposed directive in national law. It is hoped, and indeed recommended as good practice, that Member States will take the view that national transposition measures will not be restricted to matters falling within the scope of the Directive but would apply also to purely domestic cases. This would avoid the prospect of reverse discrimination against SLAPP victims in domestic disputes. It would also minimise opportunistic litigation concerning the precise meaning of ‘[relevance] to more than one Member State’ in Article 4(2)(a).

 

Defining SLAPPs

Other than in the title and preamble, the proposed directive does not deploy the term ‘SLAPPs’. Discussions preceding the drafting process noted a number of difficulties associated with the term, not least (i) its unfamiliarity to a European legal audience, and (ii) the potential confusion resulting from the word ‘strategic’, which could be understood to require evidence of said strategy. In keeping with the Model Law, the Commission’s draft Directive deploys familiar language and focuses on the abusive nature of the proceedings. Rather than referring to SLAPPs, therefore, the text of the draft directive uses the term ‘abusive court proceedings against public participation’.

 

In identifying matters falling within the scope of the draft directive, it is first necessary to establish that a matter concerns ‘public participation’ on a matter of ‘public interest’. The Commission’s draft accounts for the fact that SLAPPs do not only target journalistic activity, but also seek to constrain legitimate action of civil society, NGOs, academics, and others. Public participation and public interest are therefore defined broadly as follows in Article 3:

 

‘public participation’ means any statement or activity by a natural or legal person expressed or carried out in the exercise of the right to freedom of expression and information on a matter of public interest, and preparatory, supporting or assisting action directly linked thereto. This includes complaints, petitions, administrative or judicial claims and participation in public hearings;

‘matter of public interest’ means any matter which affects the public to such an extent that the public may legitimately take an interest in it, in areas such as:

a)      public health, safety, the environment, climate or enjoyment of fundamental rights;

b)      activities of a person or entity in the public eye or of public interest;

c)       matters under public consideration or review by a legislative, executive, or judicial body, or any other public official proceedings;

d)      allegations of corruption, fraud or criminality;

e)      activities aimed to fight disinformation;

 

If a case concerns public participation in matters of public interest, it is then necessary to establish that the proceedings are abusive in accordance with the definition in Article 3:

‘abusive court proceedings against public participation’ mean court proceedings brought in relation to public participation that are fully or partially unfounded and have as their main purpose to prevent, restrict or penalize public participation. Indications of such a purpose can be:

a)      the disproportionate, excessive or unreasonable nature of the claim or part thereof;

b)      the existence of multiple proceedings initiated by the claimant or associated parties in relation to similar matters;

c)       intimidation, harassment or threats on the part of the claimant or his or her representatives.

 

There are therefore two key elements to the notion of abuse: (i) claims may be abusive because they are fully or partly unfounded, or (ii) they may be abusive because of vexatious tactics deployed by claimants. The implications of a finding of abusiveness will vary depending on the type of abuse identified in the proceedings, with more robust remedies available where the claim is manifestly unfounded in whole or in part.

 

Main legal mechanisms to combat SLAPPs

Once a court has established that proceedings constitute SLAPPs falling within the directive’s scope, three key remedies will be available to the respondent in the main proceedings: (i) the provision of security for costs and damages while proceedings are ongoing, (ii) the early dismissal of proceedings, and (iii) payment of costs and damages.

 

Speedy dismissal of claims is considered the cornerstone of anti-SLAPP legislation. Accelerated dismissal deprives the SLAPP claimant of the ability to extend the financial and psychological costs of proceedings to the detriment of the respondent. Early dismissal of cases must, of course, be granted only with great caution given it is arguable that this restricts the claimant’s fundamental right to access to courts. The solution provided in the draft directive is to restrict the availability of this remedy to claims which are manifestly unfounded in whole or in part. It is for the claimant in the main proceedings to show that their claim is not manifestly unfounded (Art 12).

 

Early dismissal is not available where the claim is not found to be manifestly unfounded, even if the its main purpose is ‘to prevent, restrict or penalize public participation’ (as evidenced by ‘(i) the disproportionate, excessive or unreasonable nature of the claim…the existence of multiple proceedings [or] intimidation, harassment or threats on the part of the claimant’). This differs from the Model Law which envisages early dismissal in cases which are not manifestly unfounded but which bear the hallmarks of abuse. The Model Law’s authors reasoned that a court should be empowered to dismiss a claim which is designed to abuse rather than vindicate rights. This would not, in our view, constitute a denial of the right to legitimate access to courts but would dissuade behaviour which is characterised as abusive in the Commission’s own draft instrument. While the Commission’s reasoning and caution are understandable, the high bar set by the requirement of manifest unfoundedness allows for significant continued abuse of process.

 

This shortcoming is mitigated somewhat by the other remedies, namely the provision of security pendente lite (Article 8) and liability for costs, penalties, and compensatory damages (Articles 14-16), which are available regardless of whether the SLAPP is manifestly unfounded or merely characterised by abuse of rights. These financial remedies are especially useful insofar as they give the respondent some comfort that they will be compensated for the loss endured through litigation. They are also expected to have a dissuasive effect on SLAPP claimants who would be especially loathe to the notion of rewarding the respondent whose legitimate exercise of freedom of expression they had sought to dissuade or punish. Nevertheless, it bears repeating that in all cases these remedies, designed to compensate harm, should supplement the principal remedy of early dismissal which is intended to prevent harm.

 

In addition to these main devices to dissuade the initiation of abusive proceedings against public participation, the draft directive includes a number of further procedural safeguards. These include restrictions on the ability to alter claims with a view to avoiding the award of costs (see Recital 24 and Article 6), as well as the right to third party intervention (Article 7) which will enable NGOs to submit amicus briefs in proceedings concerning public participation. While this may appear to be a minor innovation at first blush, it could have substantial positive implications insofar as it would equip more vulnerable respondents (and less expert courts) with valuable expertise and oversight.

 

London Calling: Private International Law Innovation

While the provisions discussed above would limit the attractiveness of SLAPPs in EU courts, there would remain a significant gap if EU law did not provide protection against the institution of SLAPPs in third countries. London, with its high litigation costs and somewhat claimant friendly defamation laws, is an especially attractive forum for claimants who wish to suppress public scrutiny. Equally, other States could be attractive to claimants who wish to circumvent EU anti-SLAPP law, whether simply as a function of the burden of transnational litigation, or because of the specific content of their substantive and/or procedural laws. The draft directive therefore proposes to introduce harmonised rules on the treatment of SLAPP litigation in third countries.

 

Article 17 provides that the recognition and enforcement of judgments from the courts of third countries should be refused on grounds of public policy if the proceedings bear the hallmarks of SLAPPs. While Member States were already empowered to refuse recognition and enforcement in such cases, the inclusion of this article ensures that protection against enforcement of judgments derived from vexatious proceedings is available in all Member States.

 

Article 18 provides a further innovation by establishing a new harmonised jurisdictional rule and substantive rights to damages in respect of SLAPPs in third countries. The provision confers jurisdiction on the courts of the Member State in which a SLAPP victim is domiciled regardless of the domicile of the claimant in the SLAPP proceedings. This would provide an especially robust defence against the misuse of third country courts and reduce the attractiveness of London and the United States as venues from which to spook journalists into silence.

 

While the limitation of forum shopping in respect of third countries is, of course, welcome, there does remain a significant flaw insofar as EU law and the Lugano Convention facilitate forum shopping within the European judicial area. The cumulative effect of EU private international law of defamation is to provide mischievous litigants with ample opportunity to deploy transnational litigation as a weapon to suppress freedom of expression. NGOs have therefore requested amendment of two EU private international law instruments:

 

In the first instance, and as a matter of urgency, the Brussels I Regulation (recast) requires amendment with a view to grounding jurisdiction in the domicile of the defendant in matters relating to defamation. This would remove the facility for pursuers to abuse their ability to choose a court or courts which have little connection to the dispute;

The omission of defamation from the scope of the Rome II Regulation requires journalists to apply the lowest standard of press freedom available in the laws which might be applied to a potential dispute. We recommend the inclusion of a new rule which would require the application of the law of the place to which a publication is directed;

 

These changes have not yet been forthcoming. It is hoped that ongoing reviews of these instruments will yield further good news for public participation in the EU.

 

Concluding remarks

Daphne’s Law will now have to be approved by the Council of Ministers and the European Parliament. The legislative process may see a Parliament seeking more robust measures pitted against Member States who may be inclined to protect their procedural autonomy. The Commission has considered these competing demands in its draft and sought to propose legislation which strikes a balance between divergent institutional stances. Nevertheless, it must be expected that the draft will be refined as it makes its way through the approval process. As noted above, the draft would be improved if those refinements were to include the extension of early dismissal to cases beyond the narrow confines of manifest unfoundedness. Equally, the draft directive should be viewed as a first welcome step in the pushback against SLAPPs in Europe and that reviews of private international law instruments will follow soon after.

 

Photo credit: ContinentalEurope, on Wikicommons

Harassment of Human Rights Defenders: Measuring Democracy, Bad Faith and Hidden Agendas - What Role for the European Court of Human Rights?

Dr Marco Antonio Simonelli, PhD, University of Siena, and Alast Najafi, LLM candidate, University of Leiden

A. Introduction

In its recent judgment of Aliyev v. Azerbaijan, the European Court of Human Rights (hereafter the Court) activated anew the long dormant Article 18 ECHR (which provides that States shall not abuse the possible limitations on human rights which the Convention allows)  to unanimously find a violation thereof. The judgment is the third case this year where the Court found an Article 18 violation in Azerbaijan, but still remains unprecedented, since it allowed the Court for the first time to find a violation of that provision in conjunction with Article 8 ECHR (the right to private and family life). The judgment also indicates the measures to be adopted by the Azeri Government to execute the judgement, while drawing at the same time a dramatic picture of the political situation in Azerbaijan.

The present piece briefly illustrates the facts of the case, to subsequently consider the application of Article 18 in the light of the test elaborated by the Grand Chamber in Merabishvili v. Georgia (1). It is claimed that whilst, on paper, the “predominant purpose” test may be flawed, its application in Aliyev unveils Article 18’s promising potential in countering rule of law backsliding (2). In a third step, the significance of the recommendations given by the Court under Article 46 ECHR will be examined, that prove themselves as being a useful tool for enhancing the European supervision of “rebel” States, while leaving the more political aspects of the Convention’s enforcement mechanisms to the Committee of Ministers (3). In the conclusions, it will be sketched out which role Strasbourg could play in safeguarding democracy across Europe (4). 

1. The facts

Similar to the facts in Rasul Jafarov v. Azerbaijan, the case concerned criminal proceedings brought against a civil-society activist, well-known human rights defender and chairman of a non-governmental organisation. Charged for illegal entrepreneurship, large-scale tax evasion and aggravated abuse of power, the applicant was detained, and several documents and objects were seized during the search of his association’s office and home. While still in detention, new charges were brought against the applicant that lead to a five-year suspended sentence and his release in March 2016. The Court held that there had been, inter alia, a violation of Article 18 taken in conjunction with Articles 5(1)(c) (concerning pre-trial detention) and 8(2) ECHR, since both his detention and the search of his office and home pursued the illegitimate aim to silence and punish the applicant for his activities in the field of human rights.

2. The considerations under Article 18

Article 18 ECHR states that restrictions on Convention rights shall not be applied for any purpose other than those for which they have been prescribed. For a long time, this Article has not been of any practical importance in the Court’s jurisprudence. Yet, a slow but steady rise can be observed since 2004, when the Court for the first time found a violation of that provision in Gusinskiy v. Russia, leading to eleven violations to the present day. This judicial chain culminated, at the end of 2017, in the Grand Chamber ruling in Merabishvili, which set out general principles with regards to the interpretation and application of Article 18. (See the Court’s guide to the application of Article 18).

Reiterating its findings in Merabishvili, the Court reaffirms the much criticized “predominant purpose” test. Indeed, this test faced criticism since the very moment of its genesis: the two concurring opinions attached to the judgment in Merabishvili attack the test for being vaguely defined and not providing objective criteria, and also scholars considered the test to be too narrowly constructed. Be that as it may, the test prescribes that a restriction of one of the substantive rights of the ECHR engages the responsibility of a State under Article 18 when a purpose which is prescribed by the Convention only serves to mask an illegitimate predominant and ulterior purpose. Contrary to what the Government tried to argue, the Court also confirms the main novelty of the Merasbishvili judgment, namely that States no longer enjoy a general presumption of good faith.

Applying these principles to the present case, the Court points out that the “combination of the relevant case-specific facts in the applicant’s case [were] similar to that of Rasul Jafarov (…) where proof of ulterior purpose derived from a juxtaposition of the lack of suspicion with contextual factors”. Unlike in Khodorkovskiy v. Russia, no “healthy core” was to be found in the charges against the applicant. Therefore, the Court, after delivering a comprehensive and alarming analysis of the political situation in Azerbaijan - the Court points out restrictive legislation towards non-governmental organisations and the fact that “[s]everal notable human-rights activists have been similarly arrested and charged with serious criminal offences” (Aliyev, §208-214) - has no problem in finding a violation of Article 18 in conjunction with Article 5 and 8 ECHR.

The manner in which the Court reached the conclusion that there has been a violation of Article 18 sheds a new light on the relevance of the “predominant purpose” test. In Merabishvili, the Court considered as non-decisive the evidence submitted by the applicant in an attempt to demonstrate that his detention had been politically motivated. By contrast, in the present case, the political situation appears to have played a decisive role in the Court’s assessment.

A paradigmatic example is provided by the different weight attached to the statements from government officials. While considering in Merabishvili that “[s]uch statements can only be seen as proof of ulterior purpose (…) if there is evidence that the courts were not sufficiently independent” (§ 324); the Court’s finding in Aliyev that “the applicant’s arrest was accompanied by stigmatising statements made by public officials” (§ 210) amounts to an element of proof to conclude that the proceedings brought against the applicant were politically motivated. This new approach to the application of Article 18 ECHR aligns better with what Judges Yudkivska, Tsotsoria and Vehabović had in mind when writing their separate opinion in Merabishvili: “when there is evident misuse of State machinery for improper political ends, the Court should treat it by default as the predominant purpose and thus find a violation of Article 18” (Joint Concurring Opinion of Judges Yudkivska, Tsotsoria and Vehabovic, § 38).

3. The “recommendations” under Article 46: a new instrument of European supervision?

After having decided the case on the merits, the Court moves on to consider the application of Article 46 ECHR (§ 220-228), which concerns the legal force of Court judgments. Considering its earlier case-law, where the Court had already found Article 18 violations in Azerbaijan, the Court finds that the events “cannot be considered as isolated events” but reveal a “troubling pattern” of arbitrary arrest and detention of government critics and human rights activists and a “misuse of criminal law in defiance of the rule of law” (Aliyev, §223). Furthermore, the Court notices that applications raising similar issues have been communicated to the Azerbaijani Government or are pending before the Court.

It has to be underlined that the Court was not only faced with a practice incompatible with the Convention but with a State which openly disregards the rule of law, as the Court worryingly stressed itself. Indeed, the measures to be adopted when domestic courts limit themselves to an “automatic endorsement of the prosecution’s application” (Aliyev, §223) can hardly be identified.

Nonetheless, the Court decided to indicate general measures to be taken by Azerbaijan to comply with the judgment, i.e. the eradication of politically motivated prosecution against human rights activists. The practice to indicate measures of general application - without going the whole way of a pilot- judgment procedure – is becoming ever common in Strasbourg case-law (Sicilianos, 2017). However, notwithstanding their frequent use by the Court, the assessment of their legal value proves to be complex.

A prompt answer can be given by restricting the analysis to the operative part of the judgment: if the Court’s indications are not echoed in the operative part, they can be considered by the respondent State as no more than obiter dicta.

Such a conclusion proves unsatisfactory in the present case. On the one hand the judgment fails to address concrete measures towards Azerbaijan in its operative part. Yet, on the other hand, the formulations chosen by the Court – “the respondent State must focus on the protection of critics of the government”, “[t]he measures to be taken must ensure the eradication of retaliatory prosecutions”, “The individual measures to be taken by the respondent State [..] must be determined in the light of the terms of the Court’s judgment” (Aliyev, §226-227) – are of a strong prescriptive nature and cannot be classified as mere recommendations.

The most satisfying answer, at least in the present case, is to view these indications rather as a message directed at the Committee of Ministers (which has the task of following up the implementation of the Court’s judgments under Article 46 ECHR) than at the Azeri Government; in fact, there are two good reasons to think so.

First, according to Article 46(2) ECHR, the primary responsibility for the supervision of the execution of judgments lies with the Committee of Ministers; thus these “recommendations” can be considered as the backdrop against which the Committee of Ministers has to evaluate the implementation of the judgement by the Respondent State. (See Villiger, in Seibert and Villiger, eds). Second, the precise nature of the indications may be interpreted as an attempt by the Court to prevent an action of the Committee of Ministers under Article 46(4) ECHR, which allows the Committee of Ministers to refer to the Court the question whether a respondent state has faithfully executed a judgement. The procedure has been harshly criticized by scholars as being a game in which the Court has nothing to win but much to lose, i.e. its legitimacy (see De Londras and Dzethtsiarou, 2017).

The Committee of Ministers triggered Article 46(4) for the first time in December 2017 to inquire whether Azerbaijan had properly executed the Court’s Judgment in Ilgar Mammadov. Since the execution of the judgment only required the release of the applicant, who was still detained at the time the Committee of Ministers launched the proceeding, the question was purely rhetorical. This impasse, which put the Court in a “impossible position” (De Londras and Dzethtsiarou), was resolved by the eventual release of Mammadov in August 2018. It is very likely that the Court, seeking to avoid being again called upon to sanction the lack of effectiveness of its own judgments, issued precise instructions to address the problem of non-execution, a problem which is, indeed, political.

However, the relevance of these measures goes beyond a mere assistance to the Committee of Ministers in supervising the implementation of the judgments.

A closer look at the last judgments in which the Court indicated measures of general application under Article 46, reveals that, in the last four years, this practice only concerned States with compliance problems with the requirements of the rule of law, in particular Azerbaijan, Hungary, Poland, Russia, Turkey and Ukraine. This pattern suggests that Aliyev may very well be part of a judicial strategy of the Court aimed at enhancing the persuasive force of its rulings. In this reading, the issuing of general recommendations can be seen as a compromise between a judgment in which the Court only orders the State to pay just satisfaction under Article 41 ECHR, and a pilot or quasi-pilot judgment in which the Court prescribes specific measures to adopted by the Respondent State in its operative part. This strategy allows the Court to continue exerting its beneficial influence over countries characterized by a rule of law backsliding, without causing a direct clash with non-abiding States, as this may prove fatal for the very existence of the Council of Europe.

4. Conclusions

Witnessing the possible emergence of new legal approaches is an exciting thing but only the test of time and subsequent judgements will show whether the Court is actually developing a new test under Article 18. In this regard, the Navalny case, currently pending before the Grand Chamber, offers a good opportunity for the Court to further consolidate its case-law, and to revisit its predominant purpose test.

What is sure is that this provision is “the only measuring instrument for democracy” the Convention regime offers. Backing this provision up by taking on a more proactive stance under Article 46 in situations where similar violations recur, leaves the Court better equipped to challenge State practices that repeatedly violate the rule of law and close spaces for civil society. The rule of law backsliding is not intrinsic to the Convention system but emerged very prominently in the European Union, where the so-called Copenhagen dilemma – i.e. the question of how to find effective means to ensure continuous respect of the organisation’s values and sanction violations thereof, once a State has successfully acceded but fails to comply – remains unsolved.

However, the recent line of case-law from Strasbourg, of which Aliyev is the last piece, hints which role could be reserved for the European Court of Human Rights in cases where States abusively undermine democracy by targeting individuals.

Barnard & Peers: chapter 9

Photo credit: ISHR