The EU Council’s new measures in the Directive on protecting persons who engage in public participation aim to better protect public participants from manifestly unfounded or abusive court proceedings.
Work on the SLAPP Directive continues and it is difficult to predict when it will be finalised. One thing, however, is certain – Poles, and primarily those who serve civil society, need regulations to protect their participation in public life more than any other EU citizens, with Poland notorious for leading the pack in the number of SLAPPs filed, according to the CASE Foundation report.[1]
As a reminder, SLAPPs (Strategic Lawsuits Against Public Participation) are frivolous lawsuits brought by public authorities, state-owned companies and entities, most often linked to the executive branch, aimed at stifling criticism and silencing those acting in defence of the public interest. These actions are designed to have a ‘freezing’ effect, as those targeted individuals who are active in public life, including journalists, foundations and even influencers – are preoccupied with ‘dealing’ with often completely unfounded accusations, rather than serving civil society.
Despite the fact that the deadline for transposing the Directive into national law has been set at three years from the date of its entry into force, it is worth noting that there are already positive signals indicating that the draft will not be blocked and will be a real source of harmonisation of existing rules.
One such signal is the request made by the EU Council in May, inviting Coreper to confirm its agreement to the text of the proposal for a new version of the Directive and to recommend that the Council reach a general approach 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. This means any matter that is of legitimate public interest and relates to areas such as fundamental rights, public health, safety, the environment, the climate or the actions of public figures. This list is illustrative and open-ended.
The Anti-SLAPP Directive aims to effectively combat SLAPPs via introducing specific procedural safeguards in cross-border cases. For the time being, it is only intended to apply to proceedings where the defendant and the claimant are domiciled in different EU Member States.
Article 5 of the Directive provides for common procedural safeguards which are:
- a security for procedural costs required from the claimant
- an early dismissal of manifestly unfounded proceedings by the court
- procedural costs awarded against the claimant
- the possibility for the court to impose dissuasive penalties or other appropriate measures on parties bringing abusive court proceedings
At the same time, the Council points out that such procedural safeguards should be applied with caution, in line with the right to an effective remedy and to a fair trial as enshrined in Article 47 of the Charter of Fundamental Rights, leaving the court with the discretion to adequately examine the case 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.
In addition, in order to make it more difficult for the claimant to choose the court, defamation cases will be decided exclusively by the defendant’s national courts to avoid situations where such cases are decided by a more lenient court.
The Directive also requires Member States to ensure that legal practitioners are suitably qualified to deal with SLAPP cases.
The current outlook suggests that this regulatory package contains just the bare minimum to combat SLAPPs. It is now clear that the biggest problem with the draft is its limited impact, with only 10% of cases meeting the cross-border criterion, according to the CASE Foundation report. This means that those operating in only one state will be deprived of any protection. MEPs are therefore calling for the Directive to be extended to cover national proceedings.[2] Unfortunately, there are no visible proposals or initiatives in this area in the Polish Parliament. This is certainly worrying, given the above CASE Foundation report.
Polish regulations vs the SLAPP Directive
Polish law provides for adequate instruments to ensure the effective transposition of the Directive, in particular Article 1911 of the Code of Civil Procedure,[3] which was introduced by the 2019 Amendment Act.
The article provides that the court may dismiss a claim in closed session if the content of the claim, its appendices, the circumstances of the case, the facts in the public domain and those known to the court ex officio make it clear that the claim is unfounded.
The explanatory memorandum to the draft Code of Civil Procedure of 2019 states that “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”. Unfortunately, despite the existence of this provision, its wording is rather unfortunate, as it assumes that the court will decide on the chances of success of a particular claim at the stage of the preliminary examination. This may lead to a breach of the right to a fair trial.[4] In practice, therefore, this provision is rarely applied.
We should also not forget about Article 5 of the Civil Code, which could provide protection for individuals against SLAPPs. In fact, it is not difficult to imagine situations in which the court, upon noticing a SLAPP-type action, e.g. in a case of infringement of personal interests, would find a personal right to be non-compliant with its socio-economic purpose and, on this basis, would 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 scheduled for the end of 2023 and its transposition will take a further three years. Faster action by the Council is clearly needed to ensure effective protection against SLAPPs. The proposed Directive itself could form the basis for a citizen-initiated draft at the national level. Such action would allow a public spirited initiative to be used and implemented without having to wait for European legislation. Unfortunately, however, there have been no signals from MPs or civil society organisations that such solutions are being planned. Considering the statistics, it is Polish citizens themselves who should be interested in such regulations being introduced.
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[1] CASE Foundation report: https://www.the-case.eu/latest/how-slapps-increasingly-threaten-democracy-in-europe-new-case-report/ access date: 02.10.2023
[2] E. Rutkowska, Dziennik Gazeta Prawna, Dyrektywa anty-SLAPP. Trudniej będzie nękać media pozwami, URL address: https://serwisy.gazetaprawna.pl/orzeczenia/artykuly/8770718,dyrektywa-anty-slapp-trudniej-bedzie-nekac-media-pozwami.html, access date: 03.10.2023
[3] Act of 17 November 1964 – Code of Civil Procedure (uniform text: Journal of Laws of 2023, item 1550, as amended).
[4] O. M. Piaskowska [in:] M. Kuchnio, A. Majchrowska, K. Panfil, J. Parafianowicz, A. Partyk, A. Rutkowska, D. Rutkowski, A. Turczyn, O. M. Piaskowska, Kodeks postępowania cywilnego. Postępowanie procesowe. Komentarz aktualizowany, LEX/el. 2023, Article 191(1).
