SLAPP: What’s new

The EU Council’s new SLAPP directive represents a significant step towards addressing the issue of Strategic Lawsuits Against Public Participation (SLAPP) within the European Union.

Although still without a set deadline for implementation, the SLAPP directive, when it finally arrives will be of significant importance for Poland, as Poland is at the forefront of countries suffering from excessive numbers of frivolous lawsuits filed, according to a CASE foundation report. Work on the SLAPP Directive continues and it is difficult to predict when it will be finalised.

The directive, aimed at safeguarding free speech and civic engagement, seeks to counteract the misuse of legal proceedings to silence or intimidate individuals, organizations, and journalists who express critical opinions on matters of public interest. Of growing concern are the numbers of Strategic Lawsuits Against Public Participation – or ‘SLAPP’ lawsuits filed, often by those in positions of authority, aimed at stifling investigations into high status entities or individuals in the public interest. Journalists exposing high level corruption are often too mired in defending spurious claims to effectively follow through on their investigations into corruption at high levels, and as a result, perpetraitors often walk away without any consequences of their actions.

Although the deadline for the Directive to enter into national law is still three years away, there are positive signs that it will pass without significant problems. In May, the EU Council invited agreement on the text of the proposal and recommending a general approach is reached on the text.

Joint EU Council proposal

Article 3 of the draft Anti-SLAPP Directive provides protection for persons concerned with matters of public interest are protected according to Article 3 of the draft Anti-SLAPP directive, which cover matters of legitimate public interest such as fundamental rights, public health, safety, the environment, the climate or the actions of public figures.

Procedural safeguards will be introduced in cross border cases, where the defendant and the claimant are domiciled in different EU Member States. Article 5 of the Directive provides for the following common procedural safeguards:

• •     security for procedural costs required from the claimant
  •   early dismissal of manifestly unfounded proceedings
  •   procedural costs awarded against the claimant
  •    the possibility for the court to impose dissuasive penalties or other appropriate measures on abusing parties

The Council also points out that these procedural safeguards should be applied with caution, in line with the right to an effective remedy and a fair trial as enshrined in Article 47 of the Charter of Fundamental Rights, allowing the court to adequately examine each case on its individual merits and thus allowing for the prompt dismissal of manifestly unfounded actions without restricting effective access to justice.

Victims of SLAPPs will be able to claim damages for the harm caused by such conduct, and defamation cases will be decided exclusively by the defendant’s national court, to avoid the claimant having the upper hand via more lenient local courts.

However, despite these initial positive steps, it is clear that the EU proposal comes with some significant limitations. It is thought that just 10% of SLAPP cases concern cross border matters, with the overwhelming majority brought by claimants in the same jurisdiction as defendants. And as defendants in the same jurisdiction as the claimants will still lack protection, and moreover, there are no signs that the Polish parliament plans to implement any such regulations.

Article 1911 of the Code of Civil Procedure, introduced by the 2019 Amendment Act, will however ensure the implementation of the current proposal.  The article provides that the court may dismiss a claim in closed session if the content of the claim make it clear that the claim is unfounded.

The explanatory memorandum to the draft Code of Civil Procedure of 2019 states “a claim should be deemed to be manifestly unfounded if, on the basis of its content, it is foreseeable that it has no chance of being granted, so that it would be a waste of the court’s time and work to hear it”.

However, again there are still real challenges to overcome, as the wording of the act assumes the court will decide on the chances of success of a particular claim at the stage of the preliminary examination which may lead to a breach of the right to a fair trial and therefore, this provision is rarely applied. Some potent protection for SLAPP victims may however come from Article 5 of the Civil Code, which could find a personal right to be non-compliant with its socio-economic purpose and, on this basis, dismiss the unjustified action.

In conclusion, the proposed draft Anti-SLAPP Directive is a step in the right direction. However, its entry into force is still some way off, and is still largely insufficient to adequately deal with the rising problem of SLAPP lawsuits.  Perhaps the proposed Directive itself could form the basis for a citizen-initiated draft at the national level, and in view of the large number of local cases perhaps Polish citizens themselves could be motivated to pressure for such regulations to be introduced.