The EU executive has proposed measures to protect journalists and campaigners working to expose corruption and wrongdoing from vexatious lawsuits.
In the first proposal of its kind in Europe, the European Commission is targeting so-called “strategic lawsuits against public participation”, or Slapps, where wealthy individuals and companies attempt to use the law to intimidate or silence investigative reporters and non-governmental organisations.
Under a draft EU directive, journalists and NGOs in the EU would be able to appeal to the courts to throw out “manifestly unfounded” court cases that involve more than one EU member state.
And in a move against London – often called the libel capital of Europe – courts in member states would be able to refuse to recognise or enforce judgments in Slapp cases from non-EU countries.
EU officials say they only have the legal powers to act in cross-border cases and believe they can close down “forum shopping”, where wealthy clients seek the friendliest legal regime to pursue their critics in the courts. But in a separate non-binding recommendation, the commission is also urging member states to crack down on vexatious court cases without a cross-border element, the most common form of abusive litigation.
Abusive litigation has mushroomed in Europe in recent years, prompting warnings from human rights experts of a growing threat to freedom of expression and perversion of the justice system and rule of law.
When the Maltese investigative journalist Daphne Caruana Galizia was murdered in 2017, she was battling 47 lawsuits from an array of business people and politicians, including cases involving London lawyers. Her eldest son, Matthew Caruana Galizia, an investigative journalist who has led a pan-European campaign against abusive lawsuits, said Slapps had made his mother’s life “a living hell”.
“Slapp cases really wreck people’s lives. They destroy careers and they destroy lives. It was like that for my mother. And it’s like that for many other journalists,” he told the Guardian.
Last year, the Italian crime reporter Cesare Giuzzi of Corriere della Sera announced he was giving up speaking at public events, saying he had been sued more than 50 times by members of organised crime gangs, their relatives, politicians, police and business people. Writing on Facebook, he said no judge had ever found against him but he was exhausted with fighting unjust allegations because of what he said at public events.
Campaign groups have also been targeted by abusive lawsuits: since 2015 there have been 42 cases brought in the EU against human rights defenders, including those seeking to protect the environment.
The European Commission vice-president Vĕra Jourová said: “These litigations are normally started by powerful and wealthy people, against those who obviously do not have such a financial buffer.” She said freelance journalists and those working for smaller publications faced “an incredible problem” with such litigation.
“This law should discourage everybody [in the EU] to go to London for such remedy,” she said, adding that court proceedings in the UK happened very frequently. She said there needed to be further discussions on “how to have better guarantees that the abusive litigations will not continue on the UK territory, turning against the European Union journalists and human rights defenders”.
Under the EU proposals, if a case is dismissed as abusive, claimants will have to bear their costs and targets of legal action can claim damages.
Matthew Caruana Galizia said the commission had done the “maximum possible” within the framework of EU law. “My family, we’re happy to call it Daphne’s law. Because we think that this is what it is,” he said. “When it comes to transposition, that will be the opportunity, I think, to cover more kinds of cases other than cross-border cases. So we’ll then have to continue the campaign at member state level.”
Diana Riba i Giner, a Catalan separatist MEP and member of the European parliament’s civil liberties committee, said the commission had not gone far enough, because its legal proposal focused on cross-border cases, not domestic ones, and civil law, rather than criminal cases.
“Loopholes will continue to allow attacks against journalists, civil society and all those who are defending democracy,” she said.
Flutura Kusari, a legal adviser at the European Centre for Press and Media Freedom, said the EU proposals were a historic development. “We have seen that Slapps destroy careers and lives. Today is the first step in creating serious obstacles to those hoping to use Slapps to censor journalists and to hide the truth.”
She said the proposals should be seen as a minimum standard for member states. While she regretted the UK was no longer an EU member state, she hoped to influence UK law through a future Council of Europe recommendation against Slapps.
The UK government last month promised legal reforms to discourage vexatious legal action by oligarchs and powerful companies. Kusari said she was optimistic about the British government’s plans. “They can no longer stay silent and close their ears and eyes on the impact of Slapps on journalism.”
