The European Commission presented a draft directive in April 2022. The EU Member States will have two years to transpose it.

‘The draft directive is only limited to specific, but the most serious cases: when a journalist, activist or scientist is sued in civil proceedings in the court of another country in or outside the European Union.

Most frequently, the initiator of the proceedings selects the legal system in which it will be easiest for him to “wear out” the defendant. In such a case, the defence is exceptionally expensive and time-consuming,’ explains Counsellor Dr Dominika Bychawska-Siniarska, an expert from the Prague Civil Society Centre and lecturer at the SWPS University of Social Sciences and Humanities.

She notes that, in Poland, as in many other Central European countries, court proceedings which can be described as SLAPPs have not been limited in recent years to litigation, but have taken on the form of criminal proceedings (largely regarding defamation), administrative penalties or proceedings initiated by the chairman of the National Broadcasting Council. Therefore, the application of the directive will be limited.

Cases taking place within one EU Member State, for instance, when the plaintiff, defendant, court and the cause of the dispute are in Poland, will be based exclusively on EU ‘recommendations’ regarding SLAPP reports and assessments through Brussels.

The European Commission uses non-binding ‘recommendations’ to encourage EU Member States to independently and voluntarily transfer the solutions from the draft anti-SLAPP directive to their national law for matters that are not cross-border cases.

The Council of Europe is also at the stage of finalizing anti-SLAPP recommendations, which may constitute additional guidance during the preparation of national regulations.

The directive as a legal minimum

Strategic Lawsuits Against Public Participation (SLAPPs) are a form of legal harassment used to intimidate and silence people speaking out in the public interest.

A report published in 2022 by the Coalition Against SLAPPs in Europe (CASE) shows an increase in the number of such lawsuits since 2015.

The objective of SLAPP proceedings is to overwhelm an individual or organization with legal, temporal and even psychological costs of numerous lawsuits in order to discourage them from dealing with certain subjects.

The sources of SLAPP lawsuits are the authorities and politicians, but also businesses that do not like, for example, investigations conducted by journalists.

In response to the European trend related to the abuse of SLAPPs, the European Commission proposed a Directive introducing a number of guarantees intended to support SLAPP victims and increasing their procedural guarantees.

The final wording of the directive was agreed on 30 November 2023, as the outcome of the negotiations between the Commission, the European Parliament and the Member States.

Its wording will be approved on 11 December 2023 by the Committee of the Permanent Representatives of the Governments of the Member States to the European Union (COREPER).

What solutions does the directive introduce?

The draft directive is only limited to specific, but the most serious cases: when a journalist, activist or scientist is sued in the court of another country in or outside the European Union.

Most frequently, the initiator of the proceedings selects the legal system in which it will be easiest for him to ‘wear out’ the defendant. In such a case, defence is extremely expensive and time-consuming.

In the light of the directive, it will be possible at an early stage to assess whether a SLAPP involves civil cross-border cases.

If the court finds that the suit is of such a nature, it will be able to:

• set aside a case that is ‘clearly groundless’ (the burden of proving that the allegations are well documented and do not have the sole intention of harassing will rest with the plaintiff); 

• impose an obligation on the plaintiff in a SLAPP case to bear all the legal costs (not only the costs of court proceedings, but also the costs of legal representation); 

• award compensation to the SLAPP victim (including for psychological losses); 

• impose an additional fine for abusing the right to harass citizens; 

• refuse to recognize a court judgment from a third country if it is a SLAPP case. This especially applies to cases brought against the media in British courts – local law and the procedure there are extremely favourable to SLAPPs.

Moderate application

Recent years have shown that most SLAPP cases in Central Europe, including Poland, are initiated by politicians, members of the ruling party or state authorities.

The main addressees of such proceedings in recent years have been the independent media or activists who criticized the authorities – which was pioneeringly documented and analysed by Agnieszka Jędrzejczyk in the ‘In the crosshairs’ series at OKO.press.

Court proceedings were not limited to civil proceedings, but took the form of criminal proceedings (largely for defamation), administrative penalties or proceedings initiated by the Chairman of the National Broadcasting Council under Article 18 of the Media Act.

The directive only applies to civil cases of a cross-border nature.

Non-cross-border cases are considered those in which:

• both parties are established in the same Member State; 

• or the impact of the SLAPP is limited to one Member State.

However, if the case gives rise to a matter of public interest in one EU Member State and a claim, for example for the complete removal of a newspaper article, affects more than one Member State (e.g. because of international circulation), this would make it a cross-border case.

Cases being handled within one EU Member State, for instance, when the plaintiff, defendant, court and the cause of the dispute are in Poland, will be based exclusively on the EU ‘recommendations’ regarding SLAPP reports and assessments by Brussels.

The European Commission uses non-binding ‘recommendations’ to encourage EU Member States to independently and voluntarily transfer the solutions from the draft anti-SLAPP directive to their national law for matters that are not cross-border cases.

The recommendations are non-binding and do not force the introduction of any new rules in Poland. The objective of the ‘recommendations’ is the political persuasion of 27 EU Member States.

It is also worth remembering that, in addition to the legal changes, in accordance with the recommendations of the EU and the Council of Europe, the following are also required:

• the introduction of a training system for legal professionals and potential defendants in SLAPP lawsuits; 

• and conducting awareness and information campaigns enabling journalists and defenders of human rights to recognize situations when they are faced with SLAPPs.

The directive also suggests that each Member State needs to collect data on SLAPP proceedings, namely ‘obviously groundless or abusive cases intended to stifle the public debate.’

Such data needs to be reported to the European Commission each year. The first report should be submitted within 4 years of the enactment of the directive.

Most Member States have already designated people who are to be responsible for contacts with the Commission.

What next? The directive as a minimum

The EU Member States will have two years to transpose the directive.

The result of the parliamentary elections in Poland opened a window for dialogue about SLAPPs in Poland and the possibility of adopting solutions based on the directive, which go beyond the sphere of cross-border disputes, and therefore also apply to exclusively domestic proceedings.

Simultaneously it should be remembered that the Council of Europe is also at the stage of finalizing anti-SLAPP recommendations, which may constitute additional guidance during the preparation of national regulations.

The transposition of the directive into our national order will require the adaptation of individual procedures in civil, criminal and administrative cases, so as to guarantee, among other things, mechanisms enabling early dismissal or discontinuation of SLAPP cases, the transfer of costs to the person or entity initiating the proceedings, or the possibility of claiming compensation.

The transposition of the directive will therefore require the adoption of several changes.

It is worth going beyond the procedure itself and taking a look at the institutions that have been used in Poland for years as an instrument for suppressing criticism, such as:

• defamation;

• insulting the Polish President;

• or insulting religious feelings.

The role of the future government, including the Ministry of Justice, within the framework of the broadly understood reforms, will be to review the applicable law and adapt it to the requirements of the directive and the standards of protection of freedom of expression.

Only the comprehensive reform of criminal and civil law can prevent the widespread use of SLAPPs against critics of the government in the future, guaranteeing effective instruments for protecting civil privacy.

Translated by Roman Wojtasz

The article was published in Polish in OKO.press, 5 December 2023.