EUROPEAN COMMISSION Brussels, 27.4.2022 SWD(2022) 117 final COMMISSION STAFF WORKING DOCUMENT analytical supporting document accompanying















































a Proposal for a Directive of the European Parliament and of the Council on protecting persons who engage in public participation from manifestly unfounded or abusive court proceedings ("Strategic lawsuits against public participation") and a Commission Recommendation on protecting journalists and human rights defenders who engage in public participation from manifestly unfounded or abusive court proceedings (“Strategic lawsuits against public participation")































{COM(2022) 177 final}

{C(2022) 2428 final}



1.Introduction: Political and legal context Nurturing, protecting and strengthening our democracy is at the heart of the Commission’s priorities, as set out in President von der Leyen’s political guidelines. A cornerstone of healthy and thriving democracies is a guarantee that people can participate actively in public debate without undue interference. For meaningful participation, people must have access to reliable information and be able to form their own judgment in a public space in which different views can be expressed freely. Free media and civil society representatives have a crucial role to play in stimulating open debate. Therefore, it is important to protect journalists, human rights defenders and others involved in protecting public interest from manifestly unfounded or abusive court proceedings (also known as strategic lawsuits against public participation (SLAPP) launched against them by powerful individuals and entities, including corporations and state organs) in an attempt to silence public debate. On 3 December 2020, the Commission issued a European Democracy Action Plan, which announced a set of measures to promote public participation and support free and independent media, including this initiative to protect journalists and civil society against abusive litigation and a recommendation on the safety of journalists. The action plan complements other initiatives, e.g. the strategy to strengthen the application of the Charter of Fundamental Rights in the EU, which sets out actions to empower civil society organisations and human rights defenders, as well as EU Rule of Law reports. The European Parliament adopted an own-initiative report on SLAPP on 11 November 2021 calling for the Commission to present a comprehensive package of measures against SLAPP, including legislation. 2.Problem definition 2.1 Definition of SLAPP SLAPP are a recent but increasingly prevalent form of interference with public debate in the EU, as shown by a study carried out for the Commission. They are a particular form of harassment used against journalists, human rights defenders and others (e.g. media outlets, civil society organisations, environmental activists and researchers/academics) who are involved in matters of public interest. Typically, they are unfounded and abusive court proceedings lodged by powerful individuals or entities (companies or state organs) against a weaker party who expresses a critical position on a matter of public interest. The purpose is to intimidate and ultimately silence the defendants by draining their resources, e.g. by filing high claims for damages or deliberately lengthening proceedings. SLAPP are typically not initiated with a view to winning the legal proceedings or obtaining any form of redress. Instead, “the procedure is initiated for the sole reason of having the procedure, in an attempt to intimidate, tire out, and consume the financial and psychological resources of the target, with the ultimate goal of achieving a chilling effect and silencing them, which will also discourage other potential critics from expressing their views”. SLAPP may have a deterrent effect on other potential targets, who may decide not to assert their right to investigate and report on issues of public interest. According to a recent study, SLAPP “are groundless or exaggerated lawsuits and other legal forms of intimidation initiated by state organs, business corporations and individuals in power against weaker parties (…). [The latter includes] journalists, civil society organisations, human rights defenders – and others who express criticism or transmit messages uncomfortable to the powerful, on a public matter”. SLAPP-initiating entities and individuals can base their claims on various grounds, the most common being defamation (both in civil and criminal suits), data protection, privacy laws, blasphemy, intellectual property or tax law. Given the imbalance in power and resources, SLAPP can have a devastating impact on the targets’ financial status and produce chilling effects, dissuading or preventing them from pursuing their work. They also represent a threat to pluralistic public debate at large, as they may lead to the self-censorship of the targets but also of others engaged in public debate. While SLAPP arise in both domestic and cross-border settings, cross-border cases involve an additional layer of complexity and costs, with even more adverse consequences for defendants. SLAPP constitute an abuse of court proceedings (or of the threat to bring such proceedings), threatening democratic values and the exercise of fundamental rights, in particular the freedom of expression and information, and the freedom of the media and leading to additional cost and burdens for the court system. 2.2 Drivers behind SLAPP Intentions behind SLAPP may differ between the initiators of the court proceedings. When SLAPP are initiated by businesses or wealthy individuals, they are typically aimed at protecting their financial interest or reputation. When initiated by state entities, they may be also aimed at protecting the politicians’ position, or even at undermining the freedom of speech as the primary objective. In any case, SLAPP have a common denominator – creating a chilling effect among NGOs, whistle-blowers, journalists (or more broadly – news outlets) and all citizens involved in public debate, and thus avoiding public scrutiny of the actions of their initiators. Another common theme of SLAPP is an abuse of process by the claimant, or excessive claims in matters in which the defendant is exercising his or her constitutionally protected right. The phenomenon of forum shopping (or libel tourism) is a factor amplifying the problem. Some jurisdictions, e.g. Ireland or Malta, are perceived as more claimant-friendly. Suing the defendant outside of his or her place of abode may further exhaust their resources, as it adds a linguistic barrier, geographical dimension, and drives up legal costs even further. The effect is even stronger when the target (journalist, rights defender or other) is sued outside the EU, for instance in the United States or the United Kingdom. 2.3 Quantitative and qualitative data related to SLAPP As observed by Borg-Barthet, Lobina and Zabrocka in their 2021 report commissioned by the European Parliament, due to the nature of the phenomenon, it is not possible to provide exact numbers related to it. An attempt can be made, however, at illustrating its scale. Perhaps the most widely known example of SLAPP against journalists is the case of Daphne Caruana Galizia, a Maltese journalist who was killed by a car bomb in 2017. Caruana Galizia was involved in the Panama Papers investigation. At the time of the attack, she had 47 pending defamation court proceedings against her, filed in Malta, the United States and the United Kingdom. Whereas this example provides an illustration of the insistence of SLAPP initiated by private entities, emanations of state are not idle plaintiffs, either. Gazeta Wyborcza, a Polish daily, reports of pending court cases against it in which it is either the Polish state or state-owned companies acting as claimants. These examples are not outliers in Europe. In 2014, the Council of Europe, together with a number of NGOs defending the freedom of expression, launched a Platform for the Protection of Journalism and Safety of Journalists . Thanks to the collection of alerts regarding attacks on media freedom, the annual reports linked to this platform provide a telling insight into the numbers and dynamic of SLAPP.

The 2021 Annual Report of the partner associations to the Council of Europe Platform to Promote the Protection of Journalism and Safety of Journalists underlines the notable increase of SLAPP-related alerts reported in 2020 over the previous year, both in numbers of alerts and jurisdictions of Council of Europe member states concerned. Croatia, Estonia, France, Germany, Hungary, Malta, Poland and Slovakia have been identified as notable examples of jurisdictions where SLAPP is rising in numbers. Evidence from the 2021 Commission Rule of Law Report suggests that SLAPP against journalists are a serious concern in several Member States. The evidence of their increasing occurrence in the EU appears to point to a need for action in order to enhance protection for potential targets. Such action includes raising awareness and knowledge on SLAPP among legal practitioners (e.g. lawyers, judges and prosecutors) and potential targets (notably journalists, media houses, and civil society representatives and organisations). Information collected on the European Media Pluralism Monitor also shows a deterioration in journalists’ working conditions. While there is more available data on threats to journalists, human rights defenders are facing the same problems. Media Freedom Rapid Response (MFRR) partners have documented no less than 626 press freedom violations in EU Member States, candidate countries and the United Kingdom in 2021, among them numerous SLAPP, affecting 1063 persons or media entities in 30 countries. A separate factsheet provides data concerning the 27 EU Member States. The recent Article 19 report provides a Europe-wide overview of SLAPP and is based on in-depth research on SLAPP litigation against journalists in 11 countries across Europe over the last four years. It concludes that there is a clear overall trend of SLAPP cases targeting journalists, media, civil society organisations and individuals in nearly every country researched and that SLAPPs represent a real threat to freedom of expression and participation on matters of public concern. The 2022 report of the Coalition Against SLAPPs in Europe (CASE) and the Amsterdam Law Clinics (ALCs) surveyed 570 cases to identify the full scale and nature of the SLAPP problem. It is intended to give a general overview of the nature of SLAPPs in Europe and the common trends and patterns identifiable in the documented cases. 2.4 SLAPP-related alerts from 2021 Examples of how SLAPP concretely unfold is provided by the Council of Europe Platform for the safety of journalists. SLAPP-related alerts in the Platform are grouped together with other forms of harassment and intimidation of journalists. In the year 2021, over 300 alerts were submitted by partner organizations, amongst these several concerned cases of judicial intimidation, meaning opportunistic, arbitrary or vexatious use of legislation, including defamation, anti-terrorism, national security, hooliganism or anti-extremism laws; issuing bogus or fabricated charges. Instances of SLAPP-related alerts published in the Platform originate from a number of Council of Europe Member States, including several EU countries, clearly showing the worrisome width of the phenomenon, often enacted by powerful complainants possessing greater means and resources than the defendants and whose underlying objective is to silence public debate on matters they consider undesirable. SLAPP alerts in the Platform for the year 2021 include: -The case of the Bulgarian Editor Stoyan Tonchev, facing charges of ‘Hooliganism’, supposedly in retaliation for his journalistic investigation into the alleged corruption of a senior magistrate and related publishing; -Also in Bulgaria, three defamation court proceedings filed against the financial editor of newspaper Nickolay Stoyanov; -In Croatia, in an alert created in September 2021, it is submitted that the publisher of the Croatian news website Index.hr, and its journalists currently face 65 active court proceedings before Croatian courts; amongst these 56 are defamation claims against the publisher, nine are defamation claims against journalists and three are claims under the EU General Data Protection Regulation (GDPR), anti-discrimination and copyright laws; -In March 2021, the Minister of Justice and Prosecutor-General of Poland filed a court proceedings against the editor-in-chief of Gazeta Wyborcza, Adam Michnik over an article written by the newspaper’s investigative journalist, reportedly the case is one of the 60 civil and criminal cases against Gazeta Wyborcza, initiated by politicians of the ruling Law and Justice party (PiS), various ministries, state-owned companies, and business people with close ties to the government; -A British journalist and his Portuguese publisher, following the publication of a book investigating corruption and kleptocracy, received letters warning them of legal action in Portugal and were then notified a “declarative action of conviction” where it appears that €525,000 in compensation is being sought from the author and €225,000 from the publisher; -In Romania, three investigative journalists and two media outlets were sued for defamation over a series of articles alleging sexual abuses and rape in an Orthodox Christian high school; -Still in Romania, over €488,000 in damages were claimed from an investigative journalism project and a journalist over an article on the sale of masks that were allegedly faulty; -In Slovenia, the Prime Minister accuses German television ARD Correspondent Nikolaus Neumeier of Nazi-style Propaganda after Criticism; -In Spain, the far-right party Vox issued a veiled threat against Magazine Publisher. The Platform partner organisations’ 2021 Annual Report “ Wanted! Real action for media freedom in Europe ” notes that powerful individuals or companies brought court proceedings that had little legal merit and were designed to intimidate and harass journalists by introducing burdensome legal costs. According to the Report, SLAPP appear in all three of the legislative areas: civil, administrative and criminal law. Addressing the abuse in the area of civil law, the Report notes that, in some cases, the desired chilling effect is pursued merely by threatening litigation or other intimidating action. SLAPP’s targets are frequently the publisher as well as the editor or individual journalists.

2.5 Examples of potential cross-border SLAPP There are indications of potential SLAPP in the following cases flagged in the public consultation and other reporting on SLAPP, although bringing a defamation claim to court cannot in itself be considered per se as being SLAPP: -In 2016 Holzindustrie Schweighofer (now HS Timber Group) brought defamation proceedings in Austria against the Romanian vice-president of a small Romanian NGO, Neuer Weg, which was campaigning against illegal logging. -In 2018, Bulgarian co-owner of Maltese bank Satabank, Christo Georgiev, sued Maltese independent journalist Manuel Delia in Bulgaria for a blog entry in which Manuel Delia reported how he had chosen to remove a story on money laundering by the Satabank bank after receiving legal threats. In 2020, Christo Georgiev sued the Times of Malta in Bulgaria for alleged damage to his reputation because the Times of Malta had reported on an ongoing money laundering inquiry concerning Satabank. -In 2018, a Dutch company, Elitech sued Friends of the Earth Croatia in Croatia for its campaign against a golf resort in Dubrovnik. In addition, the investors were seeking a court order to prevent Friends of Earth Croatia from speaking against the project in public. -In November 2020, the Swedish online business and finance magazine Realtid, its editor in chief and two journalists in their personal capacity (one of them Annelie Östlund) were sued from London by Mr Svante Kumlin, a Swedish businessman and CEO of Eco Energy World on the ground of defamation. Realtid had been investigating a network of stock promotors selling shares in Eco Energy World (EEW) to private individuals in Sweden while at the same time the company was preparing a major financing round and a stock exchange launch in Norway. The company always declined to comment ahead of publications. Instead, Realtid received legal threats from Monaco, where the company owner resides, and from London, where the company is registered. Despite the charges, Realtid continued to publish information perceived as beneficial for investors and of public interest. The following elements strongly indicate the orchestration of a SLAPP: Mr Kumlin and Eco Energy World claimed to have “significant business interests” in the UK which would justify the competence of the UK civil courts. The decision on competence is still awaited. Suing in the UK seems a strategic decision since in Sweden, the plaintiff would only be able to sue the company and its editor in chief (principle of the responsible editor), but not the journalists. Also, Swedish law would not admit a company’s claim on defamation, as only individuals can be defamed. 2.6 Council of Europe Several texts adopted at the Council of Europe refer explicitly to the problem of SLAPP or other forms of intimidating or vexatious litigation against journalists and media outlets, including online media. The Recommendation on the roles and responsibilities of internet intermediaries, adopted by the Committee of Ministers in March 2018, states explicitly that “State authorities should consider the adoption of appropriate legislation to prevent strategic lawsuits against public participation (SLAPP) or abusive and vexatious litigation against users, content providers and intermediaries which is intended to curtail the right to freedom of expression.” The Council of Europe has produced the following further documents on SLAPP or related to SLAPP: -Study on the alignment of laws and practices concerning defamation with the relevant case-law of the European Court of Human Rights on freedom of expression, particularly with regard to the principle of proportionality, 2012. -Freedom of expression and protection of reputation, a study of the case law of ECHR, 2016. -Recommendation on the roles and responsibilities of internet intermediaries, adopted by the Committee of Ministers in March 2018. - Liability and jurisdictional issues in online defamation cases , Council of Europe study DGI(2019)04. -Council of Europe and others, Hands off press freedom: attacks on media in Europe must not become a new normal (Platform for the protection of journalism and the safety of journalists / Council of Europe 2020). -In 2021, the Council of Europe’s Commissioner for Human Rights observed that, while SLAPP are not a new phenomenon, the extent of the problem is increasing. -Declaration of the Committee of Ministers on the Desirability of International Standards in 2021 dealing with Forum Shopping in respect of Defamation concerning “libel tourism”. -Many NGOs have asked the Council of Europe to issue a recommendation to combat SLAPP. The Council of Europe shares the concerns of the European Union regarding the rising threat of SLAPP to democracy and freedom of expression and information. Therefore, the Council of Europe has decided to launch work to prepare a recommendation on SLAPP. In 2022 a specific committee has started its work to prepare the recommendation. 2.7 United Nations The right to freedom of expression is protected by Article 19 of the Universal Declaration of Human Rights, and given legal force through Article 19 of the International Covenant on Civil and Political Rights (ICCPR).

States have the obligation to respect and ensure the right to freedom of opinion and expression for all, including for journalists and the media. In General Comment No. 31, the Human Rights Committee stated that States also have a positive duty to protect against any undue limitation or restriction on freedom of expression from both State agents and private parties. In practice, this means that States must guarantee a broad protection of the right to freedom of expression in the national legal system and also should undertake all necessary measures to give effect to the right and protect its exercise from undue restrictions. States must adopt legislative, judicial, administrative, or special measures geared towards safeguarding the exercise of freedom of expression in line with international and regional human rights standards. The positive obligation is central to addressing situations when legal actions are brought solely to harass or subdue an adversary and prevent an exercise of fundamental rights and the right to freedom of expression. This applies to SLAPPs. Although there is no uniform definition of SLAPPs and different concepts are used in laws and advocacy, the impact of SLAPPs on freedom of expression and human rights has been widely recognised. For instance: -The UN Special Rapporteur on the right to freedom of peaceful assembly and of association, and the UN Special Rapporteur on extrajudicial, summary, or arbitrary execution have raised concerns over the use of SLAPPs against assembly organisers. This concerned, in particular, instances where business entities seek injunctions and civil remedies against protesters on the basis of trespass or defamation laws. The mandate holders established that States have the obligation to ensure due process and to protect assembly organisers from civil actions that lack merit. -In General Comment No. 24, the UN Committee on Economic, Social and Cultural Rights established that “actions [instituted] by corporations to discourage individuals or groups from exercising remedies, for instance by alleging damage to a corporation’s reputation, should not be abused to create a chilling effect on the legitimate exercise of such remedies”. -The UN Working Group on Business and Human Rights recommended States enact anti-SLAPP legislation to ensure that human rights defenders are not subjected to civil liability for their activities. -The Resolution on Safety of Journalists, adopted by the UN Human Rights Council (UN HRC) at its 46th session, recognised SLAPPs against the media as an attempt to silence journalists and media workers and as a means used by business entities and individuals to exercise pressure on journalists and stop them from critical and/or investigative reporting. 3.Why should the EU act? 3.1 Legal basis The legal basis for the legislative instrument is Article 81(2) of the Treaty on the Functioning of the European Union (TFEU), which is the legal basis for civil judicial cooperation. The legal basis for the Recommendation is Article 292 TFEU, which allows the Commission to adopt recommendations. 3.2 Subsidiarity: Necessity and added value of EU action SLAPP are an EU-wide problem – they can be both domestic and cross-border, but cases with cross-border implications represent a particular challenge. Also, the number of cases with cross-border implications is increasing since today a statement or activity is normally accessible or visible across borders via electronic means and can lead to court proceedings initiated against the SLAPP target in another Member State. This risk grows if the safeguards are divergent in Member States. Action at EU level helps to combat the emergence and growth of SLAPP throughout the EU in a consistent manner and ensure convergence in Member States’ approaches to the phenomenon. However, the action should be targeted and limited to what is necessary to ensure consistency in approach in the Member States. In this respect, there is a need to balance access to justice as guaranteed in Article 47 of the Charter of Fundamental Rights of the European Union and personality/privacy rights with the protection of freedom of expression and information. Currently, there are very limited procedural safeguards against SLAPP under national law, they are not SLAPP-specific and the situation varies between Member States. Therefore, Member States acting individually cannot resolve the problem satisfactorily. Joint action from the Member States is needed also to fight against SLAPP from third countries because otherwise claimants will seek to benefit from divergence of systems between Member States and seek the recognition and enforcement of third-country SLAPP judgments where it can be most easily obtained. In the absence of specific safeguards costs and harassment outside the EU, SLAPP could be inflicted without remedies against abuse and plaintiffs could just resort to other fora to circumvent protection. Where (due to different standards of the protection of fundamental rights or different rule-of-law standards) a plaintiff is successful in a third country in a case that would be qualified as SLAPP in the EU, even the recognition and enforcement could be conceivable (subject only to the general ordre public clause). 4.Objectives: What is to be achieved? In particular, the initiative aims to protect journalists, human rights defenders and others from the use and effects of SLAPP by: (1) ensuring that the procedural toolbox provides courts and tribunals and other legal professionals with effective means to deal with SLAPP and targets with the means to defend themselves; (2) building awareness and expertise among legal professionals and targets that will help them take action against SLAPP; (3) ensuring that support is available for those facing SLAPP; and (4) ensuring a more systematic monitoring of SLAPP.

It should be stressed that there is no implicit assumption that court proceedings against journalists and human rights defenders are by default unfounded and that they may need special treatment by the legal system. This is only the case where SLAPPs are used against journalists and others. It is therefore not the objective of this initiative to introduce different legal standards depending on who is sued. 5.State of Play Anti-SLAPP legislative measures may seek to eliminate the effects of SLAPP in three main ways: by deterring the filing of SLAPP, by providing avenues for a quick dismissal of a SLAPP, once it is filed; and by providing for other remedies. This section presents an analysis of the relevant legislation and case law of Member States (subsections 5.1 and 5.2). Member States do not have specific safeguards against SLAPP. Annex 3 provides an overview of the characteristics of civil proceedings in Member States which are relevant for SLAPP. It contains information on possibilities of early dismissal in first and second instance proceedings and an overview of existing rules in Member States on abuse of rights, showing that at present there are no specific procedural tools against SLAPP. With the existing limited possibilities, SLAPP can only be dismissed under the same rules as any other claims that may be unfounded, costs only be awarded under the same rules as for other court proceedings and penalties are not available except where there are general provisions on abuse of procedure. For the specific situation of SLAPP where it is not the objective of the plaintiff to win the case, but to harass the defendant, just ensuring eventual dismissal is not an appropriate solution. They require instead a speedy procedure leading to the dismissal of the claim, penalties for the claimant and the elimination or at least reduction of damages imposed on the SLAPP target. Specific statistics on civil proceedings do not exist in most EU Member States. Apart from general information regarding the total number of civil cases, appellate proceedings and enforcement, specific data (i.e. on the number of cases under the specific EU procedural law instruments, precise numbers of cross-border cases etc.) are missing. Also, courts and other authorities in Member States do not ordinarily distinguish between purely national cases or international cases and cases with an EU element. Anti-SLAPP non-legislative measures may seek to build awareness and expertise among SLAPP targets, legal professionals and other groups, ensure that support is available for those facing SLAPP and ensure a more systematic monitoring of SLAPP. Subsection 5.3 presents an overview of the situation regarding awareness, knowledge and data monitoring and occurrence of SLAPP in the EU. 5.1 The notion of public interest An effective way of fighting SLAPP is their dismissal at the earliest possible stage of proceedings in those cases where the court proceedings are evidently and manifestly unfounded (sections 5.1 and 5.2). This may however not always be possible or successful, which means that the court would have to consider SLAPP on substance. The notion of the public interest is inherent to actions of public participation that are targeted by SLAPP is a key concept in that context and may provide an avenue to discharge the defendant from liability for actions that were in the public interest (5.1.2) or, as a measure of last resort, cancel or reduce the damages owed to the plaintiff (5.1.3). 5.1.1European Convention on Human Rights The role of public interest is most frequently considered in the context of a collision between freedom of expression of a journalist/publisher/activist and the right to privacy of another individual or even a legal entity. The two rights are enshrined in the European Convention on Human Rights (ECHR) and usually also form part of the fundamental rights under the constitutions of the Member States. The collision of two convention rights that deserve equal protection requires a balancing test, the outcome of which should in principle be the same whether court proceedings have been lodged under Article 8 of the ECHR (right to privacy) by the person who was the subject of a certain publication, or under Article 10 of the ECHR (freedom of expression) by the publisher, journalist or activist that may be targeted by a SLAPP. In its landmark cases Von Hannover (no. 2) and Axel Springer , the European Court of Human Rights (ECtHR) developed the criteria which national courts should follow when determining whether the right to privacy may be limited by the freedom of expression. One of the principal elements of the balancing test is that a publication contributes to a debate of general interest. In a recent case OOO Memo v. Russia, the ECtHR specifically refers to the growing awareness of the risks that court proceedings instituted with a view of limiting public participation bring for democracy and to the power imbalance between the claimant and the defendant when assessing whether the claimant was pursuing a legitimate aim of protection of reputation. The general (public) interest is assessed on a case-by-case basis. However, the ECtHR has stated that it “ordinarily relates to matters which affect the public to such an extent that [the public] may legitimately take an interest in them, which attract its attention or which concern it to a significant degree, especially in that they affect the well-being of citizens or the life of the community. This is also the case with regard to matters which are capable of giving rise to considerable controversy, which concern an important social issue, or which involve a problem that the public would have an interest in being informed about.” On the contrary, the right to privacy cannot be limited where an action has “the sole purpose of satisfying the curiosity of a particular readership” regarding the details of a person’s private life. In other words, unless actions of journalists or activists demonstrate a public interest component, court proceedings based on the right to privacy, in principle cannot be perceived as malign and could not qualify as SLAPP. The legislation and particularly the national case law of several Member States (ES, HR, SL) are heavily influenced by the case law of the ECtHR, which appears to result in a certain level of harmonisation among Member States concerning limitations of the right to privacy in favour of the freedom of expression, but differences in the precise way these rights are balanced still remain. 5.1.2 Public interest and liability The basic premise of the public interest in the context of liability is that there can be no infringement of the rights of others (and thus liability) by an action of a journalist or an activist where such action was taken in the public interest. In this context, the most effective method of addressing SLAPP is by means of “public interest exceptions”, i.e. exclusion of liability for potential monetary or moral harm suffered by the plaintiff when an action was in the public interest. The personal and material scope of such exceptions varies in different Member States. Moreover, the notion of public interest in provisions containing such exceptions is usually not defined, but rather assessed on a case-by-case basis (IT, SL, ES) and taking into account the relevant national and ECtHR case law. Some Member States provide for this type of “public interest exceptions” in the general civil or criminal law and in particular in provisions concerning the infringement of personality rights, while others provide exceptions only in more specific areas of law such as media law (HR) or trade law (SE) . The notion of public interest may be included by direct reference (EE) or by referring to other circumstances that could potentially also cover actions in the public interest. In some Member States where concrete reference to the notion public interest is absent in the legislation, the courts have introduced the notion of public interest as a means to exclude liability through the relevant civil (PT, PL, SL) or criminal (IT, PT) law jurisprudence, notably by applying the balancing test and by referring to the criteria developed by the ECtHR. In terms of the personal scope of the “public interest exceptions”, some Member States make a distinction between the right to privacy of private and public persons (HU), while the legislation of others does not make such a distinction (EE). In the latter cases, a distinction may however be made by the courts (ES) when balancing the right to privacy and freedom of expression inter alia by applying the relevant ECtHR criteria concerning a lawful limitation of a right to privacy of public figures. Furthermore, some Member States provide additional protection to certain categories of persons who are generally considered to work in the public interest such as whistle-blowers (FR) or journalists/publishers (HR, ES, SL). 5.1.3 Public interest and damages Even where a court would also find a journalist or an activist liable for an action which was in the public interest, the notion of public interest may sometimes be relied on in order to reduce or cancel altogether the damages owed to the plaintiff. Irish tort law for instance provides that the jury or the court may decide to only award nominal damages where a plaintiff has established that that he/she has suffered a breach of a legal right but has not suffered a loss, while contemptuous damages are awarded where a court accepts that the plaintiff has suffered a wrong, but his/her behaviour has been such that the Court signals its disapproval of the conduct.

Differently, the legislation of most other Member States does not provide for a de iure or de facto cancellation of damages, but rather provides that a calculation of damages should take into account several factors and concrete circumstances of each case (DE, SL, ES). In this context, acting in the public interest may be considered as a mitigating element relevant when the courts are determining the amount of non-pecuniary damages, i.e. within their discretionary powers, the courts may decide to award a lower amount of damages when an action was in the public interest. Finally, it should be noted that the amount of damages awarded, particularly for infringement of personality rights, was scrutinised several times by the ECtHR, including in cases involving Member States. Conscious of the potential chilling effect that excessive damages may have on the freedom of expression, the ECtHR emphasized on several occasions that damages for infringement of personality rights must bear a reasonable relationship of proportionality to the injury to reputation suffered and cannot be excessive in that they would go beyond merely compensating the non-pecuniary damage suffered (e.g. punitive damages). 5.1.4 Conclusion The analysis shows that the legislation in Member States provides for some general safeguards based on which a SLAPP case may end favourably for a journalist or an activist who was being sued for actions that were in the public interest. In this regard, the most reliable method of addressing SLAPP would appear to be through codified “public interest exceptions” that would refer directly to the public interest and would cover all types of damages. Such provisions that would ensure a clear exemption of civil and/or criminal liability, however, currently do not appear to exist. Article 1046(2) of the Estonian Law of Obligations Act could serve as an example of such a targeted “public interest exception”, however, in its current version it covers only infringements of personality rights. Even when the legislation does not provide specific exceptions linked to the public interest nature of an action, the public interest is frequently considered as part of the balancing test based on constitutional and ECHR provisions. Acting in the public interest, linked in particular to the freedom of expression, may justify the limitation of other rights and thus result in a conclusion that an action subject of a SLAPP case was lawful. The absence of codified “public interest exceptions” may be perceived as providing less legal certainty for journalists and activists, however, due to the extensive and constantly developing case law of the ECtHR, this may prove to be less critical. In this context, the analysis has demonstrated that the case law in different Member States, particularly concerning freedom of expression and right to privacy, follows the criteria set by the ECtHR and that there even exists a certain level of harmonisation among Member States in this regard. The notion of public interest may be also relied on when determining the amount of damages, however, with the exception of Ireland, acting in public interest appears to only justify the reduction of damages, while we have not found provisions that would allow a cancellation of damages altogether when a journalist or an activist would be found liable in a SLAPP case. Finally, it should be noted that the above analysis mostly considered the notion of public interest in the context of freedom of expression and right to privacy (personality rights), while it cannot be excluded that the notion of public interest in other contexts where SLAPP may exist would be of a limited use (e.g tax or IP law). It needs to be underlined, however, that at present in Member States there are no SLAPP-specific safeguards available, addressing the situation that harm is done not (only) through potentially winning a court case, but (primarily) through entangling the defendant in a costly and exhaustive court case even though that case will be lost in the end. 5.2 Costs The costs in civil proceedings represent an important aspect of SLAPP, since one of the aims of SLAPP is to drain the financial resources of SLAPP targets and claiming excessively high amounts in damages is a typical feature of SLAPP, and the costs of proceedings (both court fees and lawyers’ fees) are often tied to the amount of the claim. The financial burden linked to legal procedures is an important factor that contributes significantly to their chilling effect. On the other hand, efficient cost rules are also a crucial deterrent factor, preventing claimants from introducing abusive litigation. This aspect has recently also been stressed by Advocate General Hogan in his Opinion in the pending case C-251/20 where he explicitly addresses SLAPP cases and states that “the existing rules in the Member States relating to the reimbursement of legal costs are often insufficiently rigorous with regard to the obligation of the unsuccessful party to compensate the successful party for the damage caused, as the case may be, either by the action or by the fact of having abusively resisted the applicant’s claims. Indeed, these rules do not always take into account sufficiently the indirect costs generated by the management of a procedure (in particular the costs of hardship caused by the litigation), although in practice those costs can be significant, both economically and non-materially. If those costs were systematically and better compensated, in particular in the case of abuse of process, applicants would be dissuaded from abusing the mosaic principle, since this would expose them to the risk, in the event that they are unsuccessful in their claim, of having to pay significant damages to the defendant.” The costs in civil proceedings are regulated differently in Member States, in particular in relation to the costs that are reimbursed to the winning party. Annex 4 provides an overview over the costs rules applicable in the Member States. It results from this overview that in most Member States the legislation expressly provides that the losing party covers all or part of the costs incurred by the wining party, i.e. the 'loser pays’ principle. It appears that some kind of the loser pays principle exists in all Member States with the exception of Czechia, Slovakia, Ireland, and Luxemburg. Even in those jurisdictions, the losing party may be required to cover the costs incurred by the winning party, which is subject to the court’s discretion, but in principle awarded. Luxemburg is an exception in that the winning party in principle has to cover its own costs. The judge may exceptionally and on express request order the losing party to pay to the other party a procedural indemnity, however, the amount is often symbolic. The scope of the ‘loser pays’ principle may depend on the definition (recognition) of costs in civil procedure in a particular Member State. In several Member States, the costs that can be reimbursed are in principle limited to the costs considered as necessary or reasonable. Furthermore, the legislation in several Member States provides for different situations when the courts may derogate from the basic rule (e.g. minor defeat, conduct of the parties) and any event the courts appear to be offered a relatively wide margin of discretion when deciding on the costs. The ‘loser pays’ principle can also be applied proportionally, i.e. according to the partial success of the party. In the majority of Member States, the plaintiffs in civil proceedings are usually required to pay a certain amount of court fees/costs in the very beginning of the proceedings as a prerequisite to file an application. In Finland, the costs are paid at the end of the proceedings, which is also the case in some other Member States, but only for specific proceedings (e.g. social matter disputes before first instance courts in Slovenia). The court fees are either set as a flat fee or according to the value of the case. In addition to the court fees in the beginning of the proceedings, a variety of other costs may be incurred by the parties in the course of the proceedings. These costs depend on the Member State, however, in most Member States include the fees of experts, translators, and interpreters, while depending on a particular jurisdiction also for costs of notifications, the copy, certificate rights (IT), witness expenses, travel costs (SL), costs incurred in serving a document abroad (EE) etc. These costs are mostly paid in advance of a particular action and may be reimbursed at the end of the proceedings. The costs are in some instances covered by the court and in others by the parties (by the party requesting a certain action or shared by both parties). The legislation is country-specific in regard to each type of costs. For instance, in Czechia the court pays the fees of experts, translators and interpreters it appoints, while in Estonia the fees charged by experts, interpreters and translators are to be paid in advance by the party who submitted the application resulting in the costs. The costs in civil proceedings also include the costs of legal representation, which may also be covered by the ‘loser pays’ principle. Where the costs of legal representation are borne by the losing party, the (maximum) tariff is usually set, so as to avoid disproportionate costs. However, it should be noted that the lawyers’ fees can in principle be agreed outside of this tariff, i.e. the real cost of the legal representation can be much higher than the costs reimbursed to the winning party at the end of the proceedings. Finally, the reimbursement of costs according to the ‘loser pays’ principle may be ordered automatically (ex officio) or only at the request of a party. In some Member States the costs are awarded already by the final decision, while in others the court issues a separate award (order) concerning the costs. In accordance with the above, SLAPP targets are generally entitled to a compensation of costs they incurred in the course of the proceedings based on the ‘loser pays’ principle. However, there are three main problems in relation to the practical application of this rule. First, usually under the loser pays rule not all costs will be reimbursed. Only in a few Member States are legal fees fully recoverable. In others there is a statutory fee system, only part of the costs are to be paid by the winning party, or the court has a discretion to limit the recoverable costs. Second, there are limitations as to what are considered procedural costs and in particular whether costs incurred prior to proceedings are recoverable, including those in case a settlement is reached (the latter is not customary in SLAPP cases). Third, usually costs are only reimbursed after the proceedings are concluded and separate steps proceedings may be required to calculate the costs and to get these actually reimbursed. This may take a significant amount of time. These three issues make the reimbursement of cost rules often problematic in SLAPP cases. 5.3 Non-legislative measures to tackle SLAPP The consultation on the European Democracy Action Plan showed that the SLAPP phenomenon is still relatively unknown in the EU - only 26 percent of respondents indicated being familiar with the term SLAPP. Knowledge was much higher among academics, NGOs, national authorities or business associations. Nonetheless, awareness on SLAPP and on how to counter SLAPP could be higher, including among the judiciary. Experts and civil society also have signalled the importance of providing further trainings on SLAPP for judges, legal practitioners, journalists and other media professionals, as well as for human rights defenders. In this vein, the proposed anti-SLAPP Model Directive, which is a civil society model law, includes a reference to training in its Article 25. The Council of Europe has also implemented trainings for judges (e.g. in the framework of the Horizontal Facility for the Western Balkans and Turkey II ). This results in judges being educated about the European standards set by the European Convention on Human Rights and the ECtHR, in particular in the areas of media and freedom of expression, as promoted by the Communication ‘Ensuring justice in the EU – a European judicial training strategy for 2021-2024’ . The use of existing materials and training practices such as the ones promoted on the E-Justice portal, the UNESCO Global Toolkit for Judicial Act and the Council of Europe’s HELP (Human Rights Education for Legal Professionals) online courses should be encouraged. SLAPP targets often have difficulties in finding relevant information to organise their defence and more generally legal assistance on how to address the legal proceedings. Also, the threat of legal proceedings and the potential legal consequences add to the distress of having to find a lawyer, facing charges in a court, etc., especially for SLAPP targets that are not part of resourceful organisations willing to assist them. At times simply finding information on the SLAPP phenomenon is challenging for targets.

Finally, there is a lack of systematic monitoring of SLAPP cases in the European Union. The Platform established in 2015 by the Council of Europe to promote the protection of journalism and safety of journalists has contributed to create some transparency and raise awareness for the issue, as has the Media Pluralism Monitor (that feeds into the Rule of Law reports). However, information available on the Platform on SLAPP only covers cases against journalists (i.e., it does not include cases against human rights defenders) and does not provide details on the entire proceeding, but rather flash alerts that reflect only disparate moments of the proceeding and which do not always contain the same type of data to allow for a systematic aggregation. It is therefore not a monitoring mechanism. In addition, more granular data on the length of the proceedings, judicial costs and the overall evolution of a SLAPP case that could be aggregated together with other relevant information is not available. The lack of systematic monitoring poses a challenge for targets, legal professionals and authorities to obtain sufficient information to monitor and tackle the phenomenon. 6.What is the chosen policy option? As shown above, the existing procedural safeguards in the Member States are not sufficient to tackle SLAPP, and protection by substantive safeguards is inadequate. Legislative action is therefore needed for the following reasons: ·Member States do not have specific safeguards against SLAPP, which is a specific, particularly abusive and growing phenomenon threatening the basics of our democracy. This conclusion emerged clearly from the technical workshop with Member States held on 26 October 2021 as well as from the dedicated consultation of national judges; ·The existing general safeguards in Member States as described above in Section 5 are not fit for purpose of dealing with SLAPP cases swiftly and expediently and more generally preventing the harmful phenomenon of SLAPP growing roots in the EU. Legal clarity and certainty is needed, in particular to provide proper protection to targets of SLAPP; ·Evidence on the increase of SLAPP shows that existing deterrent/protective measures, if any, do not currently prevent or discourage SLAPP; ·Due to the specific problems caused by cross-border SLAPP and SLAPP from third countries, uniform EU action is needed to tackle the phenomenon. Tackling SLAPP efficiently requires a combination of legislative and non-legislative measures, in order to address the various aspects in a comprehensive package and take account of the cross-border and national dimensions. The aim of a legislative instrument is to provide targeted civil procedural safeguards against SLAPP in cross-border situations, e.g. through early dismissal, covering the cost implications and allowing third-party interventions in proceedings to support targets of SLAPP. It contains a set of general rules enabling courts to dismiss abusive SLAPP cases at a very early stage of proceedings, before they can produce their most harmful effects. This will also help deter parties from bringing such cases in the first place, as the threatening effect of lengthy and expensive proceedings would be diminished. Specific protection would be provided to EU targets against SLAPP from third countries. The proposed personal and material scope of the Directive is wide: it aims to protect any natural or legal person who is targeted with manifestly unfounded and abusive court proceedings due to their engagement in public participation on matters of public interest. The objective of the wide personal scope is to ensure that the protection covers all potential targets of SLAPP, including secondary targets. Early dismissal of manifestly unfounded court proceedings upon the application of the defendant is a key element of the proposed Directive. This would facilitate the swift termination of abusive proceedings, thus preventing further adverse consequences for the defendant resulting from the need to invest monetary and other resources in litigation. Other elements linked to early dismissal are expediency in proceedings, the burden of proof for the claimant to show that the case is not manifestly unfounded and the right for non-governmental organisations to intervene to support the defendant/target of SLAPP. The second key element consists of the remedies against abusive court proceedings. This involves award of costs and compensation of damages to the defendant who has been targeted with a SLAPP. In addition, the court are given the possibility to impose penalties on claimants who have brought abusive court proceedings against public participation, with the aim of deterring potential claimants from initiating abusive court proceedings against public participation. The third key element would be to provide protection to SLAPP targets in the EU against SLAPP from third countries. Art. 81(2)(f) TFEU allows the Directive to cover only cases with “cross-border implications”. The Commission has opted to interpret the concept of “cross-border implications” in a broad sense since SLAPP cases often do not stop at borders. In order to increase legal certainty, the concept would cover also cases where the court seized and the parties are located and domiciled in the same Member State where a) the act of public participation against which court proceedings are initiated concerns a matter of public interest that is relevant to more than one Member State; b) the claimant or associated entities have initiated concurrent or previous court proceedings against the same or associated defendants in another Member State. Whilst SLAPP can be both domestic and cross-border, the cross-border cases are particularly complex and their speedy dismissal is even more important for preventing a chilling effect. A cross-border dimension of SLAPP makes such cases significantly more challenging to defendants, who may need to fight proceedings brought in multiple jurisdictions at the same time. This results in additional costs and burdens with even more adverse consequences. Currently there are very limited procedural safeguards against SLAPP, they are not SLAPP-specific and the situation varies between Member States. Cross-border safeguards would therefore also provide a model for Member States on how to efficiently fight against SLAPP at national level. Since the Member States need to transpose the Directive into their national civil law, it also makes sense, legally speaking, to provide the same safeguards for domestic and cross-border cases. In a cross-border context, it is important to explore how to best protect EU journalists, human rights defenders and others from SLAPP filed in third countries. Protection from third-country SLAPP would involve refusal to recognize and enforce third-country judgements against EU journalists and human rights defenders on grounds of public policy in EU Member States, when the judgement is based on SLAPP. The second remedy against third-country SLAPP would allow the defendant (the EU journalist, human rights defender or other) who has suffered harm as a result of abusive third-country court proceedings against public participation to seek full compensation of damages in an EU court against a third-country claimant. The relevant rules on jurisdiction and applicable law (set out respectively in the Brussels Ia Recast Regulation and the Rome II Regulation) will be assessed at a later stage as part of the ongoing evaluations of these Regulations and, if deemed appropriate, may be reviewed. As a first step, a legal study on the Rome II Regulation on law applicable to non-contractual obligations has been published. This study looks, among other issues, at SLAPP-specific issues related to applicable law, in particular at the current exclusion from the Regulation’s scope of defamation claims. Another legal study on the Brussels Ia Regulation has been launched. Therefore, the anti-SLAPP initiative does not cover these elements. The preparatory work as well as the discussions in the expert group against SLAPP set up by the Commission and with stakeholders suggest that a legislative approach alone, especially since it would target only civil procedural safeguards against SLAPP in cross-border situations, may not be sufficient to protect targets of SLAPP in the most effective manner. Non-legislative measures would complement the legislative instrument and apply also to national cases and criminal and administrative law relevant to SLAPP. It will focus on aspects such as training, awareness raising, support and monitoring. First, Member States are recommended to review their applicable legal frameworks to provide for the necessary safeguards to address SLAPP in full respect of fundamental rights including the right to freedom of expression, the right to access to justice and the right to the protection of personal data and democratic values. Second, as judiciary and judicial staff as well as other legal professionals (e.g. lawyers) play a central role in an effective fight against SLAPP, Member States should support training opportunities on unfounded and abusive court proceedings against public participation for legal professionals such as judiciary and judicial staff at all court levels, lawyers, covering in particular the Charter and the European Convention on Human Rights as relevant in the SLAPP context. In addition, training should cover the case law of the ECtHR on ensuring freedom of expression and information with other fundamental rights. The level of awareness and knowledge of lawyers is important, in particular of lawyers who may have to defend a SLAPP target in court. To strengthen their capacity to deal with SLAPP, legal trainings should also be made available to journalists and other media professionals and human rights defenders. Adequate training will contribute significantly to informing journalists and human rights defenders of their rights and obligations, thus helping them to take the necessary steps to protect themselves from possible legal action. Third, despite its prevalence in the EU, the SLAPP phenomenon, as well as the term itself, is still unknown to most citizens. Awareness raising efforts towards citizens and specific groups should provide a clear overview of the defence capabilities available to them under their national framework should they face an unfounded and abusive court proceeding against public participation and how to effectively use them. Fourth, SLAPP targets encounter difficulties in finding relevant information to organise their defence and more generally legal assistance on how to address the situation. Member States are therefore recommended to ensure that targets of unfounded and abusive court proceedings against public participation have access to individual and independent support. To that end, Member States should also establish a focal point that gathers and shares information on all organisations that provide guidance and support for targets of unfounded and abusive court proceedings against public participation.

Fifth, an effective approach to counter SLAPP would require a more systematic monitoring of and data collection on SLAPP (including self-reporting). Member States should, taking into account their institutional arrangements on judicial statistics, entrust one or more authorities to collect and report to the Commission in full respect of data protection requirements, data on unfounded and abusive court proceedings against public participation initiated in their jurisdiction. To ease the collection of data, the authorities entrusted to collect and report data can establish contact points in order for judicial authorities, professional organisations, non-governmental organisations, human rights defenders, journalists and other stakeholders to share data on unfounded and abusive court proceedings against public participation. There may also be existing structures that can support the collection of data. For example, National Human Rights Institutions, where established, may play an important role as independent entities that are able to collect data on and report SLAPP. Other entities such as ombudspersons’ offices, equality bodies, or competent authorities such as those designated under the Directive on the protection of persons reporting on breaches of Union law may also be relevant. National focal points providing an overview of support resources and the entities or authorities entrusted to collect and report data could be situated in the same organisation, taking into account the requirements and criteria described in this Recommendation. The data collected should include sufficient information for authorities and other relevant stakeholders to quantify and better understand the phenomenon of SLAPP including in view of providing the necessary support. This includes for example the duration of proceedings. The data collected and reported should include: the number of SLAPP, initiated in the relevant year; the number of SLAPP dismissed early in the relevant year, both dismissed on merits and for procedural reasons; the type of defendant (e.g. journalist, rights defender, press outlet); the type of plaintiff (e.g. politician, private person, company); the statement or activity related to public participation that led to court proceedings; the initial damages requested by the plaintiff; the employed legal basis by the plaintiff; the length of the proceedings, including all instances; any identified cross-border element; and where available, other relevant data including the judicial costs of the proceedings; as relevant, the historical background of the case, the law firms representing the plaintiff. The initiative (including both legislative and non-legislative measures) needs to preserve all parties’ fundamental rights, e.g. data protection and privacy rights, and access to an effective remedy and a fair trial. As necessary, the EU expert group against SLAPP established by the Commission could support the development across Member States of comparable criteria that can be easily applied by the authorities entrusted to collect and report data on manifestly unfounded or abusive court proceedings against public participation. The EU expert group against SLAPP supports the exchange and dissemination of practice and knowledge among practitioners on SLAPP related issues. It could provide among others technical assistance to authorities in setting up focal points, developing training material and organising legal assistance. 7.Expected Impacts Because the Commission is proposing a carefully targeted combination of legislative and non-legislative measures, there are no significant negative impacts for citizens or businesses to be expected. The application of the proposed Directive will, however, have two main impacts for the specific group of SLAPP targets, namely to speed up litigation in SLAPP cases, and to reduce costs and burdens for SLAPP targets which can be expected to be significant. Firstly, where a claim is dismissed early as manifestly unfounded in an accelerated procedure, it should be faster than dismissal in a normal procedure in accordance with national law. Secondly, a claimant who has brought abusive court proceedings against public participation can be ordered to bear all the costs of the proceedings, including the full costs of legal representation incurred by the defendant, unless such costs are excessive. This cost rule is of significant importance for SLAPP targets because under otherwise applicable national law, they are often not reimbursed all their costs, in particular with regard to lawyers´ fees (see above under 5.2). That this is a problematic issue in general (outside the specific context of SLAPP) is highlighted by the fact that a large majority (69 %) of respondents of an evaluation study of national procedural laws and practices considered the (non-)recoverability of legal costs to be a significant or very significant impediment/obstacle to cross-border litigation. Furthermore, procedural savings can be expected for national justice systems due to the shortening of the duration of judicial proceedings in SLAPP cases. Successful deterrence of SLAPP would free court systems of the burden of dealing with manifestly unfounded and abusive proceedings allowing to focus their resources on meritorious (at least non-abusive) cases for the benefit of everyone. The proposed Directive has an impact on fundamental rights, in particular on access to justice because it provides for an early dismissal of claims and rules on costs, damages and penalties which normally do not apply. The procedural safeguards are carefully targeted and leave the court sufficient discretion in individual cases to maintain the delicate balance between speedy dismissal of manifestly unfounded claims and effective access to justice. In particular, the early dismissal of a case is permitted only in cases where the court is in a position to come to the conclusion very early on that they are manifestly unfounded; in such cases access to justice is not limited but just effectively dealt with in view of an assessment on the merits. Furthermore, also the foreseen right to appeal against judgments dismissing claims early is intended to maintain the guarantee of access to justice. In this regard, it should be borne in mind that the aim of an abusive court proceeding is to harass and intimidate the defendant and not to gain access to justice. Therefore, safeguards provided to the defendant do not deprive the claimant of access to justice that the claimant is anyway not seeking in the first place. Also on the basis of the case law of the European Court of Human Rights, the proposed Directive balances access to justice as guaranteed in Article 47 of the Charter of Fundamental Rights of the European Union and personality/privacy rights with the protection of freedom of expression and information. The proposed Directive will also have an impact on the legal systems of Member States because their codes of civil procedure will have to be aligned with the Directive. This impact will, however, be limited since it concerns specifically targeted safeguards only. Soft-law measures addressing SLAPP face the barrier of being non-compulsory. Addressing the decriminalisation of some activities may be difficult to achieve, requiring both substantive legal changes and political decisions. Such reform processes may be lengthy and could also face opposition at national level. Implementation costs of training, awareness-raising and support measures would otherwise likely be minor as synergies will be exploited. Monitoring measures are not expected to impose significant costs on national administrations as they will be able to rely on existing institutions and infrastructure, collect data from a variety of stakeholders and profit from synergies with existing instruments in the area of rule of law and protection of fundamental rights. Support will be provided by the Commission to ease the process of monitoring by developing templates. Annex 1: Procedural information 1.Lead DG, Decide Planning/CWP references Lead DG: DG Justice Planning reference: PLAN/2021/11950 (Directive) and PLAN/2021/11951 (Recommendation). 2.Evidence and Sources

This analytical Commission staff working document accompanying the initiative compiles the evaluative evidence. Evidence has been gathered through several consultation activities. In addition, the Commission commissioned two studies on the topic, in 2020 and 2021. Furthermore, a recent European Parliament study, the EU Rule of Law reports (2020 and 2021), a recent report from the Fundamental Rights Agency on “Protecting civic space in the EU” as well as data stemming from the alerts reported on the Council of Europe platform for promoting the safety of journalists and the data gathered via the European Media Pluralism Monitor provide evidence. There is no Impact Assessment on this initiative. As SLAPP target and harm actors who play a fundamental role in preserving the public interest in our democratic systems, it is crucial that strong and swift action be taken to prevent their extensive use. Given the nature of SLAPP, quantifying their incidence in the EU and the full extent of their economic impact is a challenge, and fully assessing their impact on democracy even more so. Due to a shortage of quantitative data, other available evidence have been used. An expert group against SLAPP has assisted the Commission in the preparation of the initiative and in the exchange and dissemination of best practice and information on SLAPP. A sub-group has supported the group’s discussions with research on the relevant legal issues. A specific sub-group on monitoring has assisted with the relevant areas of the non-legislative measures. Annex 2: Stakeholder consultation The stakeholder consultation collected feedback on various aspects of the Commission’s initiative against abusive litigation (SLAPP) targeting journalists and human rights defenders and its various policy options. Input and comments were received from a wide range of key stakeholders representing EU and non-EU citizens, national authorities, academics, research institutions, legal professionals, NGOs and other relevant interest groups. The aim of the consultations was to gather feedback from those directly concerned by SLAPP, notably targets but also legal professionals such as judges, prosecutors or lawyers. Associations and organisations that represent and defend SLAPP targets, such as journalists’ organisations and human rights defenders organisations, were considered to provide important input, as well as Member States, especially for information on the remedies available at the national level against SLAPP (albeit non-SLAPP specific), best practices and the dimension of SLAPP, despite the challenges of data collection. Consultation strategy & Consultation methods and tools The Commission’s consultation strategy included five main consultation activities, each of them having a different running period, recipient and/or object. The consultation activities involved an exploratory technical focus group discussion in March 2021, with a selected number of participants that included four targets of SLAPP, who agreed to share their personal experience, provided useful insights on SLAPP and helped inform the preliminary, preparatory phase. An Open (online) public consultation accessible via the Commission’s central public consultations page, collected from 4 October 2021 to 10 January 2022 views of citizens, journalists, Member States, NGOs, civil society, judges, legal professionals and other stakeholders on SLAPP and what action should be taken to tackle it in the EU. A targeted consultation of national judges took the form of a survey shared through European Judicial Network in civil and commercial matters. It was launched on 12 November 2021 and remained open until 10 January 2022. It sought more detailed feedback on identification of SLAPP, potential procedural shortcomings, already existing (albeit non-SLAPP specific) national remedies, awareness of judges on SLAPP and judges’ training needs. A technical meeting with Member States experts in October 2021 gathered insights on Member States views (including experts from relevant Member States’ independent bodies and authorities) on whether and what type of EU-level action could be needed against SLAPP, what judicial remedies (if any and general or specific) and what kind of support are currently available at national level to SLAPP’s targets. A meeting/workshop with selected stakeholders, with particular interest in issues related to SLAPP, provided in November 2021 a forum for discussion on the dimension of SLAPP, collecting information, discussing and testing possible solutions. In addition, an informal expert group against SLAPP was set up in early 2021 (following a call published in December 2020) to assist the Commission in shaping an effective package against SLAPP. The expert group provided legal expertise as well as other good practice to help shape an effective initiative. The Commission’s work took also into account the evidence gathered by the European Parliament during the preparation of its own-initiative report on the matter adopted at the end of 2021. Two studies on SLAPP commissioned by the Commission also fed into the initiative. Identified stakeholders The following stakeholders were identified as relevant: citizens, SLAPP targets, NGOs and civil society organisations, media, publishing houses, associations involved in the protection of journalists, legal professionals, in particular judges, prosecutors, lawyers (e.g. having to organise the defence of a SLAPP target) and their training providers and professional networks, both at the European and national level, Member States, international organisations with a mandate in freedom of expression and democracy, other EU institutions (Council, European Parliament, European Economic and Social Committee, Committee of Regions) and agencies (Fundamental Rights Agency), ombudsman office, associations and organisations involved in democracy matters, other organisations, especially those involved in the protection of freedom of expression, research, academia and “think-tanks”. Main stakeholder feedback per consultation activity Exploratory technical focus group discussion The technical focus group discussion took place on 11 March 2021 with the aim to gather direct feedback from SLAPP targets or those working on SLAPP on the type of support that would be helpful. Among the ten participants (representing the media and civil society), four targets of SLAPP shared their personal experience and lessons drawn. Two academics and representatives of the Council of Europe helped putting the contributions into the wider context of fundamental rights and EU competences. The focus group discussed about the rising number of alerts received by the Council of Europe on its 2015 platform; the difficulty to establish a clear, undisputable criteria characterising a SLAPP case; the need for a mix of measures and a combined effort at EU and national level, such as easier access to legal aid and financial assistance for targets, awareness raising and training of legal professionals concerned; the complexity added by the cross border dimension of cases; the crucial role played by the independence of the judicial system and expertise of the judiciary professionals to identify and use tools available to end SLAPP cases.

Open (online) public consultation (OPC) The open public consultation received 178 replies from across the European Union and abroad, mostly from NGOs (70) and citizens (60), representing 22 Member States. However, some of the respondents were umbrella organisations with members in all Member States. These EU-wide organisations reported that SLAPP are on the rise in the EU, including cross-border cases. Among the NGOs, organisations of journalists, environmental organisations and human rights organisations were most prominent. The ENNHRI (European Network of Human Rights Institutions) flagged the use of SLAPP against national human rights institutions. Seven Member States participated in consultation, including France and Czechia. Citizens, NGOs and trade unions strongly support EU-wide action against SLAPP, both legislative and non-legislative, whilst the views among Member States were more divided, in particular concerning legislative action. The opinions expressed in the OPC were convergent in terms of the content of training on SLAPP and its audience, the need to raise awareness across the board and to provide support to SLAPP targets, the benefits of collecting data systematically and proper monitoring of SLAPP. Feedback taken on board in the Recommendation includes in particular the invitation to review defamation laws, the promotion of professional and ethical standards on SLAPP, the emphasis on fundamental rights and practical information in SLAPP trainings, the forms of assistance to SLAPP targets and defendants, which comprise provision of information and public funding, as well as collection, monitoring and publication of SLAPP. Some feedback was not taken into account, as it is outside the scope of the initiative (e.g. the possibility of the defendant to be substituted in proceedings by a third party, the setting up of a mechanism to refinance journalistic activities, the establishment of a EU register of claimants or of dedicated professional indemnity insurance schemes for journalists, and ensuring access to psychosocial support services). Targeted consultation of national judges The targeted consultation received 130 replies, in 11 languages. All the respondents answered as individual national judges. Unlike the majority of respondent to the OPC consultation, the majority of judges were unfamiliar with the concept of SLAPP (60.77% of the respondents, 79 out of 130 replies). The respondents signalled that there is no legal definition of SLAPP or a special procedure in their Member State. However, many respondents referred to general remedies, which are applicable to SLAPP, such as applicable law rules, an early dismissal procedure, legal aid for the target, third party interventions and suspensive measures. Majority of the respondents were not able to reply to the question related to the need of legislative changes at national and/or at the EU level. As for non-legislative measures, judges listed in order of preference: training (prioritizing specific training on SLAPP), exchange of best practices with other legal professionals in their Member State or from other Member States and a specific contact point for guidance and monitoring. The majority considered that SLAPP should be monitored in Member States. Technical meeting with Member States experts The meeting took place on 26 October 2021. The Commission presented the plan to propose a comprehensive initiative in the form of a package of both legislative and non-legislative components. Member States’ experts discussed the questions prepared by the Commission with regard to the legislative elements, which are limited to civil procedural area. They also exchanged information on the provisions available under their national procedural systems, the cross-border dimension of the phenomenon and the possible key components of a legislative and non-legislative anti-SLAPP initiative at EU level. The French Presidency expressed a mainly positive opinion towards the initiative and considered that both legislative and non-legislative action is needed. In contrast, Czechia signalled that it would not support legislative action against SLAPP in cross-border situations and, instead, action should be non-legislative. Most Member States demonstrated support or some support. In contrast, FI, HU and PL expressed a negative opinion towards legislation. Some Member States showed hesitation, in particular towards legislation, while others were still reflecting or on a waiting mode. Stakeholder workshop On 25 November 2021, the Commission organised a stakeholder workshop with participation of 34 interested organisations, including the Council of Europe and the Fundamental Rights Agency and with the participation of the European Parliament. The attending organisations expressed strong support to EU-level action on SLAPP and provided important additional evidence on SLAPP in the EU. Other consultations Informal expert Group The Commission worked intensively both with the main Expert Group and the legislative sub-group, who met on a monthly basis. An informal sub-group on monitoring was also organised on 17 January. European Parliament The European Parliament adopted an own-initiative report on SLAPP on 11 November 2021 calling for the Commission to present a comprehensive package of measures against SLAPP, including legislation. Commissioned studies The Commission has also commissioned two studies in order to develop a better understanding of the phenomenon in the EU and a first mapping of the situation in the Member States. Feedback to the Roadmap Feedback resulted from six NGO’s, three EU citizens and a micro enterprise, whose countries of origin are Spain (2), Germany (2), Netherlands (1), Italy (1), Hungary (1), Czech Republic (1), Belgium (1) and Austria (1). The contributions emphasized the need of a broad definition of the personal and material scope and suggested to put in place procedural safeguards, such as accelerated proceedings, measures to deter the filing of multiple claims against the same claimant and related to the same publication, specialization of courts. Other suggestions concerned the mapping of SLAPP within the rule of law monitoring, funds to support and assist the targets and data collection.

Contributions received outside the formal consultations Ministry of Justice of Land Nordrhein-Westfalen in Germany issued a Position Paper, stating that the initiative can be supported insofar as corresponding mechanisms are to be launched in legal systems which do not yet offer sufficient protection against abusive court proceedings. The basic prerequisite for combating SLAPP claims however is to ensure the independence, quality and efficiency of the judicial systems of the member states. Where effective procedural and substantive rules for the dismissal of abusive claims already exist in Member States, the intended European requirements should take these into account and be consistent with them. Amendments to international civil procedural law and soft law measures appear particularly suitable to prevent possible abuse. The Office of the Croatian Ombudsman issued the replies to the questionnaire of the OPC via mail outside the EU survey Portal, reporting that they had not been granted user profile registration. The contribution has been taken into account even if it does not result the statistics provided by the software available to the Commission services. The Government of Malta issued the replies to the questionnaire of the OPC via mail outside the EU survey Portal two days after the closure. The contribution has been taken into account but it has not been included in the statistics provided by the software available to the Commission services. Annex 3: Overview of the characteristics of civil proceedings in Member States relevant for SLAPP 1 Early Dismissal As explained in the analysis of the characteristics of SLAPP, they aim at draining defendant’s resources, such as time and money. Because of that, the possibility to detect and dismiss a SLAPP at the earliest stage possible is a critical measure in the anti-SLAPP toolbox. At the same time, the benefits of early dismissal must be weighed against the principle of the right to be heard and right of access to justice. 1.1 First instance proceedings The technical workshop with Member States on 26 October 2021 revealed that none of the Member States had any specific safeguards against SLAPP. However, some Member States have reported on general procedural safeguards, which may provide some protection against SLAPP. This section concerns predominantly provisions that allow the court to dismiss a SLAPP before the first hearing. Table 1 presents seven EU jurisdictions (CY, EE, FI, NL, PL, PT, SE), where reasons that could be associated with a SLAPP case - such as lack of sufficient interest, a clearly unfounded claim or its frivolous nature – could lead to such dismissal. Member State Condition Result; stage of the proceedings Remarks Cyprus Action is frivolous or vexatious (Order 27 Rule 3 of the Civil Procedure Rules) Action stayed, dismissed or judgement to be enter accordingly Applies to any stage of the proceedings Estonia - The violation of the rights of the plaintiff is not possible on the basis of the factual circumstances presented; - The action is not filed for the protection of a right or interest of the plaintiff protected by law or for a purpose for which the state should grant legal protection, or the action cannot achieve the aim pursued by the plaintiff (article 371(2) of the Civil Procedure Code) The court may refuse to hear an action – inadmissibility. Finland - Claim is clearly unfounded - No sufficient interest in bringing the case Inadmissibility Netherlands - No sufficient interest in bringing the case (Article 3:303 of the Civil Code) Inadmissibility Applies to all legal remedies during the course of proceedings Sweden - Plaintiff’s statement does not constitute a legal basis for the case - Case is clearly unfounded (Chapter 42 Section 5 Code of Judical Procedure) The court may enter into judgement without issuing a summons – decision on the merits. Portugal Claim is manifestly unfounded (article 590(1) of the Civil Procedure Code) Claim is dismissed Poland Claim is obviously unfounded (article 1911 of the Code of Civil Procedure) Dismissal – decision on the merits during an in camera sitting Analogous conditions are laid down for an appeal that is lodged against a judgement issued pursuant to article 1911 (article 3911 of the Code of Civil Procedure) Table 1. Instruments allowing for early dismissal of the case in civil proceedings at the court of first instance As to the conditions, only the Cypriot provision refers explicitly to a “frivolous or vexatious” action, which may be best suited to counter SLAPP. The remaining provisions refer to, i.e., the action being “manifestly unfounded” and the lack of sufficient interest. With regard to the result, the mechanisms allow for declaring an action as inadmissible or for dismissing it by entering into judgement. While both of these solutions are beneficial for potential SLAPP defendants, the second one allows the case to gain a res iudicata quality – barring subsequent attempts to bring the same case before a court. Case law and/or legal commentaries underline the extraordinary nature of the above-described mechanisms. The Supreme Court of Cyprus has underlined that the use of Order 27 is “appropriate only in cases that are simple, obvious and clear” and cannot be applied where the decision required taking testimony either in writing or orally. In Estonia, an action may be dismissed only if the plaintiff’s claim could not be upheld on any substantive basis, even one not mentioned in the claim itself. The courts may also not examine any evidence when deciding to dismiss a claim. The Supreme Court of the Netherlands has also ruled that courts should be cautious about rejecting a claim on the ground that there is no sufficient interest. In some jurisdictions, the possibility to use the early dismissal mechanism for SLAPP cases has been questioned explicitly. According to legal commentaries concerning the Dutch mechanism, it seems that the fact that an action is lodged only to harm another party or for a purpose other than that for which the legal remedy was envisioned does not, in itself, mean that there is no sufficient interest in the proceedings. Similarly, the Appellate Court in Łódź (Poland) has ruled that the early dismissal mechanism “…seems to refer primarily to situations in which, by bringing an action, a party seeks neither to obtain a favourable judgment nor to oppress his opponent, but merely to instigate legal proceedings for the sake of participating in them”. Finally, in some legal systems that do not foresee explicitly a possibility for early dismissal of a case, there are some elements which may nevertheless expedite proceedings of SLAPP, to the benefit of the defendant. In Slovakia, the court may, pursuant to article 171(2) of the Code of Civil Procedure (Civilný sporový poriadok) decide the merits of a case during a preliminary hearing, as long as it is “possible and expedient”. (In other cases, the preliminary hearing serves as an opportunity for the court, together with the parties to the dispute, to determine whether the procedural conditions have been met and to take measures to eliminate the identified deficiencies, determine which factual allegations are disputed, take decisions on evidence and the expected data of the hearing.) Pursuant to article 86a(2) of the Austrian Code of Civil Procedure (Zivilprozessordnung), if a written pleading consists of confused, unclear or pointless statements, and if it fails to recognise the request, or exhaustively repeats points of dispute which have already been settled or claims already made, it shall be rejected without any attempt to improve it. Similarly, pursuant to Order 19 r. 26 of the Cypriot Civil Procedure Rules, the court may at any stage of proceedings order to struck or amend any matter in any of the pleadings which may be unnecessary, scandalous, or which may tend to prejudice, embarrass or delay the fair trial of action. These tools, which concern specific pleadings or actions and aim at countering the unnecessary delay of proceedings, bear resemblance to instruments allowing judges to punish the abuse of procedural rights (see below under 5.2). 1.2 Second instance proceedings There are also some possibilities for “early” dismissal of a SLAPP case at the courts of second instance (appellate courts). Table 2 contains relevant mechanisms from seven EU jurisdiction (DK, MT, EE, ES, IE, IT, PT). Member State Provision Condition Result/procedure Estonia Article 637(1)(6) of the Civil Procedure Code The appeal could manifestly not be upheld. The court of appeal should not accept an appeal. Spain Article 473 Civil Procedure Act The appeal is manifestly unfounded (concerns only extraordinary appeals for procedural infringements). The appeal shall be declared inadmissible. Ireland Order 19, Rules 27-28 of the Superior Court Rules The action is frivolous or vexatious. The Court may order the action to be stayed or dismissed, or judgment to be entered (issued) accordingly, as may be just. Italy cf. Art. 348 bis Civil Procedure Code The appeal has no reasonable probability of being upheld. The appeal is dismissed, after a hearing in which the court has to determine the changes that the appeal will be upheld. Malta Section 195(7) of the Code of Organisation and Civil Procedure The appeal is frivolous and vexatious. The Court of Appeal may dismiss the appeal in open court on the day fixed for the first hearing, after the written pleadings are deemed to be concluded. Portugal Article 656 of the Civil Procedure Code The appeal is manifestly unfounded. The rapporteur shall give a summary decision, which may consist in a simple reference to a previous decision.

Table 2. Instruments allowing for early dismissal of the case in civil proceedings at the court of second instance This shows that some jurisdictions set significantly higher conditions for appeals than for the claims submitted at first instance and may therefore constitute a barrier against frivolous SLAPP appeals. In particular, two jurisdictions (IE and MT) foresee the “frivolous and vexatious” nature of an appeal as a reason for an early dismissal. 2. Abuse of procedural rights The principle of prohibition of abuse of rights is a principle common to the legal traditions of essentially all the Member States. This is reflected in the fact that the Grand Chamber of the Court of Justice recently recognised that the principle of prohibition of abuse of rights is a general principle of Union law, which individuals must comply with. Similarly, Article 54 of the Charter of Fundamental Rights explicitly lays down the prohibition of abuse of rights. That provision is itself based on Article 17 of the ECHR which also sets out the prohibition of abuse of rights. Whilst this principle has a wider application in the legal systems of the Member States, it also applies – in almost every Member State – to the abuse of procedural rights during judicial proceedings. As such, it is intended to prevent – or at least discourage – the lodging of abusive legal actions and/or the submission of abusive procedural requests during the course of proceedings. If effective, it can therefore prove a useful means of countering SLAPP, provided that the latter fulfil the conditions laid down in national law to be considered as abusive. It appears that virtually all Member States – with the exception of Denmark – apply the principle of prohibition of abuse of procedural rights to civil proceedings. There are, however, significant differences in the way the principle is applied in practice. In particular, two main distinctions ought to be highlighted. Firstly, Member States apply different criteria to determine whether an action is abusive (2.1). Whereas a majority of Member States applies the concept of good/bad faith in order to determine whether a given action is abusive, other national legal systems focus on whether the (procedural) right is being relied upon for reasons other than those intended by the legislator. Secondly, national legal systems diverge on the sort of remedy to be granted in case the action is indeed deemed abusive (2.2). On the one hand, most Member States prefer either to award damages to the party which has suffered from the abusive action or to impose fines on the party that acted abusively. On the other hand, some Member States have chosen to empower the national courts to dismiss abusive requests or actions instead. 2.1Criteria for abuse of rights In all Member States a party to legal proceedings will be deemed to have acted abusively only in exceptional circumstances. Indeed, as parties are, in principle, entitled to bring legal actions and to rely, during the course of proceedings, on the procedural rights available to them, it is only in particularly extreme situations that national courts will make a finding of abuse of rights. For instance, the Lithuanian Supreme Court has stressed that it is only in exceptional circumstances that it can be concluded that a procedural right was abused, namely when the right was manifestly not used for the purpose for which it was intended. The Portuguese Supreme Court equally ruled that courts should be cautious, prudent and reasonable when examining whether there is a case of bad faith litigation, which only occurs when it is demonstrated, manifestly and unequivocally, that the party acted maliciously or with severe negligence. Similarly, according to the Italian Supreme Court, punitive damages for abusive appeals cannot be awarded simply because the grounds of appeal were unfounded – or even manifestly founded. Rather, they can only be awarded if the party failed to display the minimum level of diligence that would have allowed it to realise that its arguments were unfounded or inadmissible. The exceptional nature of a finding of abuse of rights is also reflected in the case-law of the European Court of Human Rights on the application of Article 17 of the Convention. In its first ever judgment, the Strasbourg Court held that the crucial criterion for an assessment under Article 17 of the ECHR is whether the applicant sought to rely on his/her Convention rights ‘in order to justify or perform acts contrary to the rights and freedoms recognised therein’. Thus, the Grand Chamber of the Court has for instance held that the glorification of wartime French collaborators, which fell short of denying Nazi atrocities committed in France, was not an abuse of the freedom of expression enshrined in Article 10 of the Convention. Generally, all national legal systems require a case-by-case, in-depth assessment. For instance, the Spanish Supreme Court has called for a prudent and restricted application of the doctrine of abuse of rights, underlining that a finding of abuse requires strong and effective proof of the exercise of an action for a tortious and fraudulent purpose. In Germany, the case-law has also explicitly underlined the need for a careful examination and weighing of the relevant individual circumstances, taking into account the behaviour of the claimant in pursuing the action, the type and severity of the incriminated behaviour and the behaviour of the defendant. Furthermore, in carrying out their assessment, national courts must take into account not just the behaviour of the parties during the course of proceedings, but also prior to them. The need for an individual assessment demonstrates the difficulty inherent in drawing up general criteria to determine the abusive nature of a party’s conduct during legal proceedings. Indeed, in most circumstances, a finding of abuse will be extremely case-specific and based on the unique circumstances of those proceedings. Nonetheless, national legislators and national courts have sought to devise different sets of criteria to guide the assessment to be carried out by the courts. Whilst each national legal system has its own peculiarities, two main strands can be identified. On the one hand, approximately half of the Member States rely – at least to some extent – on the concept of good faith and a party will thus be considered as having acted abusively if it failed to comply with the requirement of good faith. On the other hand, in some Member States, national courts examine whether the party’s conduct was motivated by a purpose other than that for which the procedural right had been bestowed upon that party. 2.1.1 Good/bad faith Most legal systems contain a provision requiring parties to legal proceedings to act in good faith. Either by means of legislation or through case-law, these provisions have become also the underlying legal basis for a finding of abusive of procedural rights. This is, for example, the case of: 1.Section 200 of the Estonian Civil Procedure Code 2.Section 74(6) of the Latvian Code of Civil Procedure 3.Article 95 of the Lithuanian Civil Procedure Code 4.Article 6(1) of the Luxembourgish Civil Code 5.Article 5 of the Hungarian Code of Civil Procedure 6.Article 1295(2) of the Austrian Civil Code.

That said, the way in which legal systems have articulated and implemented the principle of good faith varies greatly. In Germany, an action is admissible only if it has Rechtsschutzbedürfnis, which roughly translates to ‘need for legal protection’. This prerequisite is a generally recognised legal principle, which is common to all procedural rules. It is derived from the principle of good faith enshrined in § 242 of the Bürgerliches Gesetzbuch (Civil Code), which obliges the parties to legal proceedings to conduct honest litigation and prohibits the abuse of procedural rights. The exercise of such rights is illegal and therefore inadmissible if they are used for purposes other than those stipulated by law and which, whilst not necessarily forbidden, are legally disapproving. Accordingly, whilst based on the principle of good faith, the concept of abuse of rights in German law draws also from the second type of criteria chosen in certain Member States, namely whether procedural rights are used for purposes other than those provided for by law. The Spanish Civil Code also provides that rights must be exercised in accordance with the requirements of good faith. Article 7 of the Code specifically provides that any act or omission which by the intention of its author, by its object or b