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1st Oct 2022

Landmark EU law to shield media from legal abuse

  • Daphne Caruana Galizia was facing 40 lawsuits when she was murdered (Photo: European Parliament)
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Independent media, such as EUobserver, and NGOs, should have less to fear in future from malicious lawsuits, after the EU Commission put forward a new law to shield them on Wednesday (27 April).

Billionaires, big corporations, and autocrats have, in recent years, resorted ever more frequently to so-called strategic lawsuits against public participation (SLAPPs) in order to try to gag adversaries.

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But if EU states and MEPs back the commission's proposed anti-SLAPP directive, then judges will soon get a fresh mandate to throw out bogus cases — and compensate their victims.

"With these measures we are helping to protect those who take risks and speak up when the public interest is at stake," EU values commissioner Věra Jourová said in Brussels.

"We promised to defend better journalists and human rights defenders," she said. "The new law does that," Jourová said.

The directive lists criteria which individual judges can, using their discretion on a case-by-case basis, use to decide whether litigation is genuine or abusive.

These include seeking disproportionately huge financial damages or launching multiple cases at the same time, for instance.

The anti-SLAPP law applies to non-EU or "third" countries, giving European judges leeway to annul vexatious judgments against EU nationals if they are doled out in London, for example.

It is delimited to civil cases "with cross-border implication".

This is because EU competences do not cover national and criminal media laws in member states under the terms of Europe's treaties.

It means a Polish journalist or LGBTI rights activist, for example, who is sued by a Polish entity would normally not be covered.

But the "cross-border" element has been drafted by Jourová's lawyers in a canny way so that if their case arguably had relevance beyond their national borders then the EU law would kick in.

EUobserver has faced three lawsuits in the past three years that were designated as SLAPPs by leading pro-free media NGOs.

The first saw a Luxembourg-based firm sue us in Belgium about an article on disinformation in Malta — an archetypal example of a "cross-border" lawsuit falling under the directive.

The second saw a Belgian firm sue EUobserver in Belgium, but as the story covered VIP-jet leasing security for EU and Nato heads of state from all over Europe this would also be covered under the cross-border clause.

The final one, which is ongoing, involves a Belarusian firm suing EUobserver in Belgium over an article about alleged money-laundering in Cyprus, but this would also likely fall under both the "third-country" and "cross-border" provisions, NGO experts told this website Wednesday in a flash analysis.

The commission "did the best it could do", given its jurisdiction, Julie Majerczak, from the Paris-based NGO Reporters Without Borders, said.

"It's not perfect, but it's a big step forward — two years ago we were nowhere on this," she added.

SLAPPs are often designed to drain small media or NGOs' morale and resources even if the plaintiffs know they'll ultimately fail.

But the victims' compensation clause, even if the cases come from London or Minsk, ought to have an "important" deterrent effect, Charlie Holt, from the Greenpeace International NGO said.

There were at least 438 SLAPP cases in 24 member states in 2021 targeting 978 people or entities, the commission noted.

"A tragic example of the use of SLAPP is the journalist Daphne Caruana Galizia [in Malta] who was facing more than 40 lawsuits at the time of her assassination in 2017", it said.

Journalists in Bulgaria, Croatia, Poland, and Slovenia were being routinely targeted, Reporters Without Borders said.

Journalists in Italy and environmental activists in France and Spain were also notable victims, it added.

"This is not about shielding journalists from legal accountability," Majerczak said.

"It's about protecting the public's right to information — to know what politicians and big business are really doing," she said.

EUobserver under attack in wider battle for EU free press

If EU citizens want to know the truth, then journalists need protection from malicious litigation, as EUobserver joined the list of targets, over an article about the late Maltese journalist Daphne Caruana Galizia.

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