The European Union countries most affected by a decline in media freedom are Hungary and Poland, whose governments use various means to threaten and destroy free media. This includes strategic lawsuits against public participation (SLAPPs), which are also used against academics, civil society organizations, activists, and whoever voices opinions displeasing the governing parties. SLAPPs drain the financial and psychological resources of their targets, create a chilling effect, and reduce the public’s access to information. They threaten the EU’s fundamental rights and values. They also undermine the established trust between EU legal systems and scrutiny by independent watchdogs, which affects the effective enforcement of EU law.
This paper reviews how laws have been abused in Hungary and Poland, as well as in Slovenia under its previous government in 2020–2022, by those filing SLAPPs. Notably, defamation is in their criminal codes, making it punishable with a prison sentence. Civil defa- mation cases are less of a threat, but they are just as psychologically and financially draining for defen- dants. As in Hungary and Poland the government has captured the judicial system and destroyed the rule of law, prosecutors there are not independent and there is a danger that they act under political pressure in some SLAPP cases.
Only in Australia, Canada, and the United States have anti-SLAPP laws been adopted. Their experience offers lessons for the EU, relating to the importance of laws that stop plaintiffs from picking the jurisdiction with the most welcoming legislation for SLAPPs (forum shop- ping), to barring corporations from suing for defamation, and to making sure that anti-SLAPP laws do not have a high threshold for demonstrating the intent of plaintiffs.
The European Commission published a proposal for an anti-SLAPP EU directive in 2022. However, in March 2023, the Council of the EU proposed amendments
Policy Paper May 2023
that water down some key features of the proposed directive. By contrast, the European Parliament might consider amendments of its own that would extend protection from SLAPPs. The paper considers to what extent the proposed directive can address the problem in the three countries studied and elsewhere in the EU.
The European Commission’s proposed directive contains key remedies for the victims of SLAPPs, to be implemented by the member states if it is adopted. The most important is the early dismissal of mani- festly unfounded cases, which would help to alleviate victims’ psychological and financial distress connected to long-standing cases. The remedies in cases that are not dismissed early include compensation of damages, liability for costs, penalties, restrictions on the ability to alter claims with a view to avoiding the award of costs, the right to third-party intervention, and protection against third-country judgments. The proposed direc- tive also has recommendations for nonlegal measures to help counter SLAPPs. These include training for legal professionals and potential SLAPP targets, information campaigns, access to support for SLAPP victims, and data collection on cases. However, it lacks a definition of “cross border”, which is necessary to understand which cases might be stopped with it, and it does not cover criminal-law SLAPP cases.
In order to support civil society in Hungary and Poland in the fight against SLAPPs, the European Commission should go beyond its recommendations to member states and promote and fund related informa- tion and educational activities that would be organized by nongovernmental organizations in these countries. But the EU will have to above all to deal with their rule of law deficiencies in both countries. As their governments control and influence the captured judiciary, there is no guarantee that, even if they were to introduce one, any anti-SLAPP law would work.
