The Proposed EU Directive on SLAPPs: A (First) Tool for Preserving, Strengthening and Advancing Democracy

Abstract

The proposed EU Directive on protecting persons who engage in public participation from manifestly unfounded or abusive court proceedings (“anti-SLAPPs Directive”) is the European Union response to fight strategic lawsuits against public participation (“SLAPPs”). The latter are proceedings where the lawsuit legal instrument is misused to silence activists regarding information activities carried out by them in relation to facts of public interest and, finally, to achieve a chilling effect on the entire society. As a result, SLAPPs represent an obstacle to freedom of expression, participation, activism, and ultimately to democracy. Indeed, democracy is the foundation the EU is based on and can only thrive in a climate where freedom of expression is upheld, in line with the European Convention on Human Rights, including its positive obligations under Article 10, and the Charter of Fundamental Rights of the European Union, highlighting the horizontal (and questionable direct effect) dimension of its Article 11. And for a healthy and prosperous democracy, people need to be able to actively participate in public debate without undue interference and to have access to reliable information. Therefore, the proposed anti-SLAPPs Directive aims to safeguard SLAPPs targets and, in so doing, strengthen democracy. The anti-SLAPPs Directive is tested practically to SLAPPs cases which have interested Daphne Caruana Galizia, a blog editor in Malta whose activism led to her being killed in 2017, as well as tested to other SLAPPs affected story lives. A broader comparative/multidisciplinary look at other human rights protection systems and anti-SLAPPs legislations in the world is offered. At the end, from the overall analysis carried out, it emerges that the anti-SLAPPs Directive has a significant potential for the objectives it aims to achieve, but that is not enough: Member States should consider also to address SLAPPs in domestic cases and to decriminalise defamation.