Freedom of the press, Anti-SLAPP directive approved

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Published by Dario Dongo on 10 March 2024

1) Daphne's Law and Digital Services Act

Freedom of the press in Europe had reached the abyss with the case of the Maltese journalist Daphne Caruana Galizia. Who, even before being barbarously killed, had suffered threats and intimidation, including through 48 defamation lawsuits. The Anti-SLAPP Directive is therefore known as 'Daphne's law', a posthumous tribute to this heroine of investigative journalism who denounced the links between organized crime and politics in Malta.

Digital Services Act (DSA), Regulation (EU) 2022/2065, has meanwhile introduced a European system of regime censorship, as has already been reported. (2) The efforts of the Coalition Against SLAPPs in Europe (CASE) are therefore only worth mitigating, with some minimum requirements, the impact of only 'manifestly unfounded' judicial and administrative actions against the brave few – journalists and otherwise – who dare promote independent information in the various media. (2)

2) Anti-SLAPP Directive

Daphne LawThe Anti-SLAPP Directive should provide protection to all those who engage in public participation on matters of public concern. Some elements introduced by the directive are procedural guarantees, support for the accused in judicial proceedings, early dismissal, recognition of costs and protection from judgments from third countries.

Member States will have to adapt their legislation to the minimum standards introduced in the anti-SLAPP directive, which includes:

– a scope of application extended to national SLAPP cases and actions in the criminal and administrative procedural fields

– safeguards in favor of those reported which include compensation for all damages suffered, with specific criteria and the imposition of substantial fines on those who use SLAPPs for intimidating purposes

– non-legal tools, such as support mechanisms, awareness-raising and training of judges/lawyers, lawyer ethics, data collection and SLAPP monitoring.

Some initial insights on the directive, developed by CASE, are available in the notes (3,4,5).

3) Future prospects

Is critical ensure the effective transposition of the Directive by Member States, not only in its minimum criteria but also in line with the European Commission's Anti-SLAPP Recommendation and the forthcoming Council of Europe Recommendation on SLAPP. (6)

Freedom of the press and the right to express one's opinions, only in theory guaranteed by the Constitutions of so-called democratic countries, remain hanging by a thread everywhere. (7) As demonstrated, among other things, by the hundreds of murders of reporters in conflict areas and the continuing imprisonment of Julian Assange.

Dario Dongo

Note

(1) Dario Dongo, Elena Bosani. Protecting press freedom from reckless lawsuits and disputes, the EU initiative. Egalité. 9.10.21

(2) Dario Dongo. Digital Service Act and freedom of information in the European Union. Egalité. 10.9.23

(3) Early Dismissal Mechanism. HOMES https://tinyurl.com/34x54x9w

(4) Definition of cross-border. HOMES https://tinyurl.com/5ezj29ed

(5) Compensatory damages. HOMES https://tinyurl.com/ye29vhu2

(6) Commission Recommendation (EU) 2022/758 of 27 April 2022 on protecting journalists and human rights defenders who engage in public participation from manifestly unfounded or abusive court proceedings ('Strategic lawsuits against public participation'). C/2022/2428 https://tinyurl.com/ymntze7b

(7) See also Media Freedom Rapid Response (MFRR) monitor https://www.mfrr.eu/monitor/

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