Six months has already passed since the so-called anti-SLAPP directive entered into force. Under EU law, it is not directly applicable, but once adopted at EU level, it must also be adapted by Member States into national law. Poland has two years to do so. This is good news, as it means that in a year and a half our country will have to account for the target imposed by the EU. Failure to inform the European Commission of the result could lead to severe financial penalties, and failure to implement the legislation, in turn, will give grounds for the Commission to initiate proceedings before the CJEU.
The anti-SLAPP directive must enter into Polish law
The need to achieve the directive’s objectives has reignited the discussion about what measures are necessary to do so. Proposals to date have included the preparation of a legal framework, based on existing provisions, i.e.:
- Dismissal of action as manifestly unfounded, in a closed session, under Article 1911 of the Code of Civil Procedure
- Provisions on the violation of the principles of social co-existence under Article 5 of the Civil Code (as a SLAPP-type action is inconsistent with social and economic purposes)
- Assumption that the action constitutes an abuse of procedural law pursuant to Article 41 of the Code of Civil Procedure, which, as a result, may lead to a given act (e.g. the filing of a statement of claim) being deemed an abuse of law and the imposition of sanctions provided for in Article 2262 2 of the Code of Civil Procedure
However, no attempt has yet been taken to introduce either procedural or substantive legislation that would incorporate or be inspired by these proposals.
Nevertheless, the SLAPP discussion has led to the use in Polish courts of expert opinions or reports, which have already been developed in this respect as well as often the content of the directive itself.
Manifestly unfounded action does not stand up to criticism
The data obtained by the Helsinki Foundation for Human Rights shows that currently the courts do not apply Article 1911 of the Code of Civil Procedure to lawsuits with SLAPP features.
The study followed an analysis of 62 judgments from 12 regional courts, which indicates that no manifestly unfounded action bore the features of SLAPP. A further 21 courts, did not apply the provision to actions involving protection of personal interests at all.[1]
This is not surprising. Following the 2019 amendments to the Code of Civil Procedure, a very restrictive line of case law has developed with regard to manifestly unfounded claims, according to which the relevant provision applies only to cases for a claim that is either unknown to law or inadmissible under substantive law. This means that cases for the violation of personal interests and rectification cases cannot be examined in terms of being manifestly unfounded, since they are firmly based on in Article 24 § 1 of the Civil Code and Article 52 of the Press Law, respectively.
This is almost an obvious impasse.
It seems, therefore, that the grounds for dismissal of the action should be sought somewhere else.
In the favourable rulings in these types of cases that we have been able to obtain, the court’s attention has been drawn to the SLAPP, which resulted in the dismissal of the actions in their entirety. These judgments related to the lawsuits for the violation of personal interests or rectification being inconsistent with their social and economic purpose.
Conflict with the social and economic purpose of law is a sensitive issue for Polish courts
In one recent case, our litigation team, defending an editor-in-chief, obtained a favourable ruling from the Regional Court in Warsaw, in which we read that ‘(…) the findings of fact made (by the Court) gave grounds to conclude that filing a lawsuit in this case was an element of strategic legal action against public participation’- SLAPP’.
This was not a solitary ruling. The same court, in another rectification case, dismissed the action arguing that ‘the defendant is right in pointing out that the action brought is intended to have a chilling effect and to silence the press from publishing material that is inconvenient to certain groups or individuals.’
The Regional Court found: ‘referring to the so-called SLAPP, this is an ostensibly lawful action, aimed at preventing, in this case, the press from operating properly by the so-called “harassment” with lawsuits .
We have good grounds for countering SLAPPs
Therefore, it seems that the Polish legal order has good grounds for building case law that counteracts SLAPPs effectively, being Article 5 of the Civil Code.
It is clear that to obtain a favourable ruling it is not enough to merely invoke SLAPPs or to groundlessly ‘oscillate’ around this concept.
Judicial representation in accordance with the principle of ‘attention to detail’ is indispensable and is only possible with the support of an experienced litigation team – a team that is familiar with the specifics of court proceedings against public participation.
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For more information see:
[1] Helsinki Foundation for Human Rights, SLAPP Strategic lawsuits against public participation, April 2024, link: https://hfhr.pl/upload/2024/06/slappy_raport_hfpc.pdf, accessed 7.11.2024.
