What changed between the draft committee report and the plenary report

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION

7 unchanged paragraphs

on the proposal for a directive of the European Parliament and of the Council on protecting persons who engage in public participation from manifestly unfounded or abusive court proceedings (“Strategic lawsuits against public participation”)

(COM(2022)0177 – C90161/2022 – 2022/0117(COD))

(Ordinary legislative procedure: first reading)

The European Parliament,

– having regard to the Commission proposal to Parliament and the Council (COM(2022)0177),

– having regard to Article 294(2) and Article 81(2)(f) of the Treaty on the Functioning of the European Union, pursuant to which the Commission submitted the proposal to Parliament (C90161/2022),

– having regard to Article 294(3) of the Treaty on the Functioning of the European Union,

Changed:– having regard to the reasoned opinionopinions submitted, within the framework of Protocol No 2 on the application of the principles of subsidiarity and proportionality, by the FrenchCzech Senate and of the CzechFrench Senate, asserting that the draft legislative act does not comply with the principle of subsidiarity,

– having regard to the opinion of the European Economic and Social Committee of 26 October 2022,

– having regard to Rule 59 of its Rules of Procedure,

– having regard to the opinions of the Committee on Civil Liberties, Justice and Home Affairs and the Committee on Culture and Education,

Changed:– having regard to the report of the Committee on Legal Affairs (A9-0000/2023]),(A9-0223/2023),

4 unchanged paragraphs

1. Adopts its position at first reading hereinafter set out;

2. Suggests that the act be cited as 'the Tiemo Wölken-... Directive on protecting persons who engage in public participation from manifestly unfounded or abusive court proceedings (“Strategic lawsuits against public participation”)';

3. Calls on the Commission to refer the matter to Parliament again if it replaces, substantially amends or intends to substantially amend its proposal;

4. Instructs its President to forward its position to the Council, the Commission and the national parliaments.

Change 1

Changed:Citation 32 a (new): Having regard to the opinion of the European Economic and Social Committee1a, / 1a OJ C 75, 28.2.2023, p. 143.Committee,

Recital 2: (2) Article 10(3) of the Treaty on European Union states that every Union citizen has the right to participate in the democratic life of the Union. The Charter of Fundamental Rights of the European Union (the ‘Charter’) provides, inter alia, for the rights to respect for private and family life (Article 7), the protection of personal data (Article 8), freedom of expression and information, which includes respect for the freedom and pluralism of the media (Article 11), freedom of assembly and of association (Article 12) and to an effective remedy and to a fair trial (Article 47).

Change 2

Removed:Recital 4: (4) The purpose of this Directive is to provide protection to natural and legal persons who engage in public participation on matters of public interest, in particular journalists, media organisations and human rights defenders, against court proceedings, which are initiated against them, as well as the threats thereof, to deter them from public participation (commonly referred to as strategic lawsuits against public participation or ‘SLAPPs’).

Added:Recital 3 a (new): (3a) The right to freedom of expression is a fundamental right that is to be exercised with a sense of duty and responsibility, taking into account people’s fundamental right to obtain impartial information as well as the respect for the fundamental right to protect one’s reputation, protection of personal data and privacy. In cases of a conflict between these rights, all parties are to have access to courts with due respect to the fair trial principle.

Removed:Recital 6: (6) Investigative journalists and media organisations in particular play a key role in combating organised crime, corruption and extremism. Their work carries particularly high risks and they are experiencing a growing number of attacks and harassment. A robust system of safeguards is needed to enable them to fulfil their crucial role as watchdogs on matters of legitimate public interest.

Added:Recital 3 b (new): (3b) In its resolution of 11 November 2021 on strengthening democracy and media freedom and pluralism in the Union, the European Parliament called on the Commission to propose a package of both soft and hard law to address the increasing number of strategic lawsuits against public participation or ‘SLAPPs’ concerning journalists, NGOs, academics and civil society in the Union. Parliament proposed legislative measures in the areas of civil and criminal procedural law, such as an early dismissal mechanism for abusive civil lawsuits, the right to the full award of costs incurred by the defendant, and the right to compensation for damage. The resolution of 11 November 2021 also included a call for adequate training for judges and legal practitioners on SLAPPs, a specific fund to provide financial support for the victims of SLAPPs and a public register of court decisions on SLAPP cases. In addition, Parliament called for the revision of Regulation (EU) No 1215/2012 of the European Parliament and of the Council1a (‘Brussels I Regulation’) and of Regulation (EC) No 864/2007 of the European Parliament and of the Council1b(‘Rome II Regulation’) in order to prevent 'libel tourism' or 'forum shopping'. / 1a Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ L 351, 20.12.2012, p.1). / 1b Regulation (EC) No 864/2007 of the European Parliament and…

Removed:Recital 7: (7) Human rights defenders also play an important role in European democracies, especially in upholding fundamental rights, democratic values, social inclusion, environmental protection and the rule of law. They should be able to participate actively in public life, promote accountability and make their voice heard on policy matters and in decision-making processes without fear of intimidation. Human rights defenders refer to individuals or organisations engaged in defending fundamental rights and a variety of other rights, such as environmental and climate rights, women’s rights, LGBTQI+ rights, the rights of the people with a minority racial or ethnic background, labour rights or religious freedoms.

Added:Recital 4: (4) The purpose of this Directive is to provide for minimum rules at Union level in order to ensure the protection of natural and legal persons who engage in public participation on matters of public interest, including journalists, publishers, media organisations, whistleblowers and human rights defenders, as well as civil society organisations, NGOs, trade unions, artists, researchers and academics, against court proceedings initiated against them, as well as the threats thereof, to deter them from public participation (commonly referred to as strategic lawsuits against public participation or ‘SLAPPs’).

Removed:Recital 7 a (new): (7a) Participants in public debate, other than journalists, media organisations or human rights defenders, such as academics, researchers or artists, also deserve adequate protection. In a democratic society, they should be able to research, teach, learn, perform and communicate without fear of reprisal.

Added:Recital 5: (5) Journalists play an important role in facilitating public debate and in the imparting and reception of information, opinions and ideas. Independent, professional and responsible journalism, as well as access to pluralistic information, are key pillars of democracy. It is essential that journalists are afforded the necessary space to contribute to an open, free and fair debate and to counter disinformation, information manipulation and interference. Journalists should be able to conduct their activities effectively and without fear to ensure that citizens have access to a plurality of views in European democracies.

Removed:Recital 9: (9) To foster this environment, it is important to protect natural and legal persons from court proceedings against public participation. Such court proceedings are not initiated for the purpose of access to justice, but to silence public debate typically using harassment and intimidation.

Added:Recital 6: (6) Investigative journalists and media organisations in particular play a key role in uncovering and combating organised crime, abuse of power, corruption, fundamental rights violations and extremism. Their work carries particularly high risks and they are experiencing a growing number of attacks, killings, threats, intimidation and harassment. A robust system of safeguards and protection, including protection of their physical safety, is needed to enable investigative journalists to fulfil their crucial role as watchdogs on matters of public interest, without fear of punishment for searching for the truth and informing the public.

Removed:Recital 10: (10) SLAPPs are typically initiated by powerful entities, for example individuals, lobby groups, corporations, politicians and state organs. They often involve an imbalance of power between the parties, with the claimant having a more powerful financial or political position than the defendant. Although not being an indispensable component of such cases, where present, an imbalance of power significantly increases the harmful effects as well as the chilling effects of court proceedings against public participation.

Added:Recital 7: (7) Human rights defenders also play an important role in European democracies, especially in upholding fundamental rights, democratic values, social inclusion, environmental protection, gender equality and the rule of law. Considering the Union’s environmental and climate policies, attention should also be given to the protection of environmental rights defenders. Human rights defenders should be able to participate actively in public life, promote accountability and make their voice heard on policy matters and in decision-making processes without fear of intimidation. Human rights defenders refer to individuals or organisations engaged in defending fundamental rights and a variety of other rights, such as environmental and climate rights, women’s rights, LGBTIQ+ rights, the rights of the people with a minority racial or ethnic background, labour rights, or religious freedoms.

Removed:Recital 11: (11) Court proceedings against public participation may have an adverse impact on the credibility and reputation of natural and legal persons that engage in public participation and exhaust their financial and other resources. Because of such proceedings, the publication of information on a matter of public interest may be delayed or altogether avoided. The length of procedures and the financial pressure may have a chilling effect on natural and legal persons engaging in public participation. The existence of such practices may therefore have a deterrent effect on their work by contributing to self-censorship in anticipation of possible future court proceedings, which leads to the impoverishment of public debate to the detriment of society as a whole.

Added:Recital 7 a (new): (7a) Participants in public debate, other than journalists, media organisations or human rights defenders, such as academics, researchers or artists, also deserve adequate protection. In a democratic society, they should be able to research, teach, learn, perform and communicate without fear of reprisal. Academics and researchers contribute fundamentally to public discourse and dissemination of knowledge, as well as ensure that the democratic debate can take place on an informed basis and counter disinformation.

Removed:Recital 12: (12) Those targeted by court proceedings against public participation may face multiple cases simultaneously, sometimes initiated in several jurisdictions. Proceedings initiated in the jurisdiction of one Member State against a person resident in another Member State are usually more complex and costly for the defendant. Claimants in court proceedings against public participation may also use procedural tools to drive up the length and cost of the litigation, and bring cases in a jurisdiction they perceive to be favourable for their case, rather than to the court best placed to hear the claim. Such practices also place unnecessary and harmful burdens on national court systems and lead to misuse of their resources.

Added:Recital 9: (9) To foster this environment, it is important to protect natural and legal persons from court proceedings against public participation. Such court proceedings are not initiated for the purpose of access to justice, but to silence public debate and prevent investigation of and reporting on breaches of Union and national law, including corruption or other abusive practices typically using harassment and intimidation.

Removed:Recital 15 a (new): (15a) This Directive lays down minimum rules, thus enabling the Member States to adopt or maintain more favourable provisions to persons engaging in public participation, including national law establishing more effective procedural safeguards, such as a double penalty whereby, in full respect of the right to a fair trial, the court is able to not only award the costs or compensation to the defendant but also impose a penalty to be paid to the state by the claimant when it is clear that the litigation it commenced was vexatious, frivolous or in bad faith. The implementation of this Directive should not serve to justify any regression in relation to the level of protection that already exists in each Member State.

Added:Recital 10: (10) SLAPPs are typically initiated by powerful entities, for example individuals, lobby groups, corporations, public officials, publicly controlled entities, politicians, judicial authorities and state organs in an attempt to silence public debate. They often involve an imbalance of power between the parties, with the claimant having a more powerful financial or political position than the defendant. Although not being an indispensable component of such cases, where present, an imbalance of power significantly increases the harmful effects as well as the chilling effects of court proceedings against public participation.

Removed:Recital 18: (18) The notion of a matter of public interest should include also quality, safety or other relevant aspects of goods, products or services where such matters are relevant to public health, safety, the environment, climate, consumer and labour rights or enjoyment of fundamental rights. A purely individual dispute between a consumer and a manufacturer or a service provider concerning a good, product or service should be covered only when the matter contains an element of public interest, for instance concerning a product or service which fails to comply with environmental or safety standards.

Added:Recital 11: (11) Court proceedings against public participation may have an adverse impact on the credibility and reputation of natural and legal persons that engage in public participation and exhaust their financial and other resources. Because of such proceedings, the publication of information on a matter of public interest may be delayed or altogether avoided. The length of procedures and the financial pressure may have a chilling effect on natural and legal persons that engage in public participation. The existence of such practices may therefore have a deterrent effect on their work by contributing to self-censorship in anticipation of possible future court proceedings, which leads to the impoverishment of public debate to the detriment of society as a whole.

Removed:Recital 20: (20) The imbalance of power between the parties which is characteristic of SLAPPs typically derives from the exploitation of economic advantage and political influence by the claimant against the defendant. Other indicators for abusive court proceedings involve litigation tactics used in bad faith such as delaying proceedings, initiating multiple proceedings on similar matters, causing disproportionate costs to the defendant in the proceedings or forum shopping. The past conduct of the claimant and, in particular, any history of legal intimidation should also be considered when determining whether the court proceedings are abusive in nature. These tactics are used by the claimant for other purposes than gaining access to justice. Such tactics are often, although not always, combined with various forms of intimidation, harassment or threats.

Added:Recital 12: (12) Those targeted by court proceedings against public participation may face multiple cases simultaneously, which can be civil, administrative or criminal or a combination of those, sometimes initiated in several jurisdictions. Proceedings initiated in the jurisdiction of one Member State against a person resident in another Member State are usually more complex and costly for the defendant. Claimants in court proceedings against public participation may also use procedural tools to drive up the length and cost of the litigation, and bring cases in a jurisdiction they perceive to be favourable for their case (forum shopping), rather than to the court best placed to hear the claim. The length and variety of procedures, the financial pressure and the threat of penalties, constitute powerful tools to intimidate and silence critical voices. Such practices also place unnecessary and harmful burdens on national court systems and lead to misuse of their resources, thus constituting an abuse of judicial systems.

Removed:Recital 22: (22) A matter should be considered to have cross-border implications unless both parties are domiciled in the same Member State as the court seised. Even where both parties are domiciled in the same Member State as the court seised, a matter should be considered to have cross-border implications in two other types of situations. The first situation is where the specific act of public participation is directly relevant to or accessible, via electronic means or otherwise, in more than one Member State. That includes for instance public participation in events organised by Union institutions, such as appearances in public hearings, or statements or activities on matters that are of specific relevance to more than one Member State, such as cross-border pollution or allegations of money laundering with potential cross-border involvement. An act of public participation should be considered to be accessible in more than one Member State, in particular, if it is carried out on the internet, for example in the case of social media campaigns or online media coverage. The ubiquitous nature of the internet warrants considering acts of public participation that are accessible in more than one Member State to be matters with cross-border implications. The effect of digital means of communication on the notion of cross-border elements has already been recognised in the case law of the Court of Justice of the European Union. The second situation where a matter should be considered to have cr…

Added:Recital 13: (13) The safeguards provided in this Directive should apply to any natural or legal person on account of their direct or indirect engagement in public participation. They should also protect natural or legal persons who, either on a professional or on a personal basis, support, assist or provide goods or services to another person for purposes directly linked to public participation on a matter of public interest. This involves for example lawyers, family members, internet providers, publishing houses or print shops, which face or are threatened with court proceedings for assisting, providing support or services to the person targeted with court proceedings.

Removed:Recital 22 a (new): (22a) Support should be available from the moment competent authorities become aware of the persons targeted by court proceedings against public participation and throughout the proceedings in accordance with the rights set out in this Directive. Support should be made available by a variety of means, including by providing comprehensive and independent information and advice, in a manner that is easily accessible to the public and free of charge, on procedures and remedies available, on protection against intimidation, harassment or threats of legal action, and on the rights of the person concerned, and by providing legal aid in cross-border civil proceedings, legal aid in further proceedings and legal counselling or other legal assistance which is deemed appropriate. Member States may provide for financial assistance and support measures, including psychological support, for those targeted by court proceedings against public participation.

Added:Recital 15: (15) The Directive does not apply to claims arising out of liability of the State for actions or omissions in the exercise of State authority (acta iure imperii) and claims against officials who act on behalf of the State and liability for acts of public authorities, including liability of publicly appointed office-holders, unless national law provides for it. In line with established case law of the Court of Justice of the European Union, court proceedings might still fall within the scope of ‘civil and commercial matters’ as referred to in this Directive where a State or a public body is a party, if the acts or omissions do not occur in the exercise of State authority.

Removed:Recital 25 a (new): (25a) Participation in proceedings against public participation exposes those targeted to particular psychological stress. The preparation for such proceedings and participation therein additionally ties up valuable resources of the defendants that they often do not have or that otherwise would have been invested in engaging in public participation. Such burden would be mitigated by allowing non-governmental organisations to take part or engage in the proceedings, either in support or on behalf of the defendant.

Added:Recital 15 a (new): (15a) This Directive lays down minimum rules, thus enabling the Member States to adopt or maintain provisions that are more favourable to persons engaging in public participation, including national law establishing more effective procedural safeguards, such as a double penalty whereby, in full respect of the right to a fair trial, the court is able to not only award the costs or compensation to the defendant but also impose a penalty to be paid to the State by the claimant when it is clear that the litigation it commenced was vexatious, frivolous or in bad faith. The implementation of this Directive should not serve to justify any regression in relation to the level of protection that already exists in each Member State.

Removed:Recital 29: (29) Courts or tribunals seised with an application for procedural safeguards, should act expeditiously in proceedings on the application, using the most expeditious procedures available under national law. To ensure high expediency in the accelerated procedure on an application for early dismissal, Member States should set time limits for the holding of hearings or for the court to take a decision. They may as well adopt schemes akin to procedures in relation to provisional measures. Member States should make efforts to ensure that when the defendant has applied for other procedural safeguards, the decision is also taken in an expeditious manner. For expeditious treatment, Member States could take into account, amongst others, whether the claimant has initiated multiple or concerted proceedings in similar matters and the existence of attempts to intimidate, harass or threat the defendant.

Added:Recital 16: (16) Public participation should mean any statement, activity or preparatory, supporting or assisting action directly linked thereto, by a natural or legal person expressed or carried out in the exercise of fundamental and human rights and freedoms such as right to freedom of expression and information on a matter of public interest, such as the creation, exhibition, advertisement or other promotion of journalistic, political, scientific, academic, artistic, commentary or satirical communications, publications or works, and any preparatory activities directly linked thereto. It can also include activities related to the exercise of academic and artistic freedom, the right to freedom of association and peaceful assembly, such as the organisation of or participation to lobbying activities, demonstrations and protests or activities resulting from the exercise of the right to good administration and the right to an effective remedy, such as the filing of complaints, petitions, administrative and judicial claims and participation in public hearings. Public participation should also include preparatory, supporting or assisting activities that have a direct and inherent link to the statement or activity in question and that are targeted to stifle public participation. In addition, it can cover other activities meant to inform or influence public opinion or to further action by the public, including activities by any private or public entity in relation to an issue of public interest…

Removed:Recital 31: (31) Costs should include all costs of the proceedings, including the full costs of legal representation incurred by the defendant unless such costs are excessive. Costs of legal representation exceeding amounts laid down in statutory fee tables should not be considered as excessive per se, but allow costs to be awarded in full, in accordance with national law. Where the national law does not provide for the full award of costs beyond statutory fees, the court should be able to award the full costs by whatever other means are available, in accordance with national law, including through the compensation of damages.

Added:Recital 18: (18) The notion of a matter of public interest should include matters relevant to the enjoyment of fundamental rights, including gender equality, protection from gender-based violence and non-discrimination, and the protection of the rule of law, media freedom and pluralism, and the environment. It should include also quality, safety or other relevant aspects of goods, products or services where such matters are relevant to public health, safety, the environment, climate, consumer and labour rights. A purely individual dispute between a consumer and a manufacturer or a service provider concerning a good, product or service should be covered only when the matter contains an element of public interest, for instance concerning a product or service which fails to comply with environmental or safety standards.

Removed:Recital 31 a (new): (31a) Full compensation for damage should include both material and immaterial damage, such as physical and psychological harm. In order for the defendant to be able to claim damages easily and in a timely manner, it should be possible to seek damages in the same proceedings as those brought against the defendant, where appropriate through a counter claim.

Added:Recital 19 a (new): (19a) Allegations of corruption, fraud, embezzlement, money laundering, extortion, coercion, sexual harassment and gender-based violence, or other forms of intimidation and criminality, or any other criminal or administrative offence, including financial criminality and environmental crime, qualify as matters of public interest. Activities aimed to protect the values enshrined in Article 2 TEU, the principle of non-interference in democratic processes, and providing or facilitating public access to information with a view to fighting disinformation also qualify as matters of public interest.

Removed:Recital 32 a (new): (32a) To ensure that the public can become aware of court decisions, Member States should establish a publicly accessible national register of relevant court decisions falling within the scope of this directive , in accordance with Union and national rules on the protection of personal data. The Commission should establish a publicly accessible Union register on the basis of the information from the registers of the Member States concerning relevant court decisions falling within the scope of this Directive, in accordance with Union rules on the protection of personal data.

Added:Recital 20: (20) The imbalance of power between the parties which is characteristic of SLAPPs typically derives from the misuse of economic advantage or political influence by the claimant against the defendant, together with the lack of legal merit. Other indicators for abusive court proceedings typically involve litigation tactics used in bad faith such as relying on one or more fully or partially unfounded claims, making excessive claims, delaying proceedings or discontinuing cases at a later stage of the proceedings, initiating multiple proceedings on similar matters, causing disproportionate costs to the defendant in the proceedings or forum shopping. The past conduct of the claimant and, in particular, any history of legal intimidation should also be considered when determining whether the court proceedings are abusive in nature. These tactics are used by the claimant for other purposes than gaining access to justice or genuinely exercising a right. Such tactics are often, although not always, combined with various forms of intimidation, harassment or threats.

Removed:Recital 33 a (new): (33a) As regards jurisdiction for defamation claims or other claims based on civil or commercial law which could constitute abusive court proceedings against public participation, the Member State of domicile of the defendant should be considered as the sole forum, having due regard to cases where the victims of defamation are private persons. With the exception of that rule concerning cases falling within the scope of this Directive, this Directive should not affect the application of Regulation (EU) No 1215/2012 of the European Parliament and of the Council1a (‘Brussels I Regulation’). / 1a Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ L 351, 20.12.2012, p.1).

Added:Recital 20 a (new): (20a) Manifestly unfounded or abusive court proceedings against public participation are becoming more sophisticated and more effective, with one of the techniques used being multiple lawsuits filed against the same person on the same subject matter, meaning that all of them have to be defended and dealt with simultaneously and in parallel by the same person, which increases costs disproportionately.

Removed:Recital 33 b (new): (33b) This Directive establishes a special ground for the applicable law for publications as an act of public participation. In claims regarding a publication as an act of public participation, the applicable law should be considered to be the law of the place to which that publication is directed. Should that place not be possible to identify, the applicable law should be the law of the place of editorial control or relevant activity with regard to the act of public participation. In cases other than thoses covered by that exception, this Directive should not affect the application of Regulation (EC) No 864/2007 of the European Parliament and of the Council1a (‘Rome II Regulation’) . / 1a Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II) (OJ L 199, 31.7.2007, p. 40).

Added:Recital 20 b (new): (20b) SLAPPs are consistently characterised by an imbalance of power between the claimant and the defendant in terms of financial and legal resources. This imbalance of power gives rise to particular concern if the abusive lawsuits are funded directly or indirectly from state budgets and are combined with other indirect and direct state measures against independent media organisations, independent journalism and civil society.

Added:Recital 20 c (new): (20c) Abusive court proceedings against public participation often infringe on defendants’ right to defence recognised by the Charter, and might also impact on their right to a fair trial and the presumption of innocence.