Over the past few years, we have learned that cybercriminals are not deterred by the combined capabilities of all of Europe’s law enforcement agencies. Cross-border criminal investigations, in the rare case when they are opened, often take years without any action. So, cybercriminals can lead an excellent life for themselves for years with the victims’ money: expensive cars, luxurious clothes, private schools for their children, and a membership at a private golf club in the best neighbourhood.
It only gets nasty when their neighbours learn about their actual business activities – crime, porn, money laundering – through investigative journalists. Suddenly, the private golf club becomes an unpleasant place to be.
With social media sharing possibilities and viral dissemination on the internet, adverse media soon ends up on the desks of business partners, banks handling the bank accounts, and authorities in charge, and all of a sudden, the hidden criminals have to explain their wealth and activities.
All about SLAPP claims:
This is very often the moment when SLAPP (the acronym stands for “Strategic Lawsuits Against Public Participation”) claims are filed by exposed criminals.
SLAPP claims are a growing issue: Research by Case—a group of non-governmental organisations from across Europe united in recognition of the threat SLAPPs pose to public watchdogs—indicates the number of SLAPP cases across Europe has been increasing. While four cases were counted in 2010, that number climbed to 146 in 2020 and 161 in 2022. EFRI and its board members alone experienced four SLAPP claims during the past 18 months.
At the time of her killing, the Maltese infamous investigative journalist Daphne Caruana Galizia was facing 43 civil and five criminal libel suits.
ANTI-SLAPP EU Directive.
In April 2022, the EU Commission proposed a SLAPP Directive (also referred to as “Daphne´s law”). On 27 February 2024, the EU Parliament finally adopted the EU Directive on protecting persons who engage in public participation from manifestly unfounded or abusive court proceedings (“Strategic lawsuits against public participation”).
The final text is Directive (EU) 2024/1069, published in the OJ on 16 Apr 2024; it entered into force on 6 May 2024. Member States must transpose by 7 May 2026.
Cross-border court cases are addressed
The new rules are intended to protect individuals and organisations dealing with issues of public interest, such as fundamental rights, allegations of corruption, the protection of democracy, or the fight against disinformation, from unfounded and abusive lawsuits.
The protection applies to all cross-border cases unless the defendant and the plaintiff come from the same EU member state as the court or the case is only relevant in one member state.
Financial protection mechanisms and a single point of contact
To ensure that victims are better protected, the Parliament implemented two protection mechanisms: the early dismissal of unfounded claims and the possibility of requiring the claimant to pay the estimated costs of the proceedings, including the defendant’s legal representation fees and damages. If the defendant requests the early termination of the proceedings, the plaintiff must demonstrate good reasons for continuing them.
The court can also impose other penalties on plaintiffs, often politicians, companies, or lobby groups. For example, it can oblige them to compensate for the damage caused.
The new rules are also intended to prevent plaintiffs from choosing the place of jurisdiction that offers the best prospects of success. Therefore, judgments handed down in third countries based on unfounded or abusive legal proceedings against individuals or entities from the EU will not be recognised.
Furthermore, Member States must ensure that potential victims of abusive lawsuits receive all information on procedural guarantees and legal remedies—including legal aid, psychological support, and other forms of support—at a single central point in the future. Member States must also ensure legal aid is granted in cross-border civil proceedings. Additionally, they must publish all final judgments on strategic lawsuits against public participation (“SLAPP lawsuits”) and collect detailed data on these cases.
Timing and next steps:
The Directive will enter into force on the 20th day following its publication in the EU Official Journal. Member states then have two years to transpose it into national law.
As with all directives, this EU directive is the minimum standard, and the EU member states can and should go above and beyond to ensure adequate protection.
