What changed between the adopted text of 11 Jul 2023 and the adopted text of 27 Feb 2024

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 it not be possible to identify that place, the applicable law should be the law of the place of editorial control or of the relevant activity with regard to the act of public participation. In cases other than those covered by that exception, this Directive should not affect the application of Rome II Regulation.

Removed:Recital 34: (34) This Directive creates a new special ground of jurisdiction in order to ensure that targets of SLAPPs domiciled in the European Union have an efficient remedy available in the Union against abusive court proceedings brought in a court or tribunal of a third country. This special ground of jurisdiction allows the targets domiciled in the European Union to seek, in the courts or tribunals of their domicile, for compensation of damages and costs incurred or reasonably expected to be incurred in connection with the proceedings before the court or tribunal of the third country. This right applies irrespective of the domicile of the claimant in the proceedings in the third country.

Removed:Recital 34 a (new): (34a) Member States should encourage and work closely with civil society organisations, including recognised and active non-governmental organisations working with persons targeted by court proceedings against public participation, in particular with regard to policy-making initiatives, information and awareness-raising campaigns, research and education programmes, and training, as well as monitoring and evaluation of the impact of such measures.

Removed:Recital 34 b (new): (34b) The provisions and safeguards of this Directive should apply to all pending abusive court proceeding against public participation before a national court at the time of entry into force of the national rules transposing this Directive and thereafter.

Removed:Recital 34 c (new): (34c) Member States should be encouraged to take appropriate action to facilitate their cooperation to improve the access of those targeted by court proceedings against public participation to information on the procedural safeguards set out in this Directive and under national law. Such cooperation should cover the exchange of information on current practices within the Member States in cross-border cases and the provision of assistance, where appropriate, to European networks and bodies such as the Fundamental Rights Agency, working on matters directly relevant to those targeted by court proceedings against public participation.

Removed:Recital 34 d (new): (34d) With due respect for the independence of the legal profession, Member States should encourage the adoption by professional associations of deontological rules that guide the conduct of legal professionals to discourage the taking of abusive lawsuits against public participation, including, where appropriate, disciplinary sanctions for the violation of those rules. Such measures should be developed in close cooperation with relevant stakeholders including professional associations, social partners and civil society organisations.

Removed:Recital 34 e (new): (34e) The collection of data is paramount to document cases of abusive court proceedings and to provide solutions in order to prevent them. This Directive should establish common criteria to standardise the data collection procedures in Member States and ensure that comparable data is collected. Member States should, on a regular basis, provide to the Commission available data showing how those targeted by court proceedings against public participation have accessed the safeguards set out in this Directive. Based on the data provided by the Member States, the Commission should submit a report every five years on the evaluation and review of this Directive to the European Parliament and to the Council. Those reports should be made public.

Removed:Recital 36: (36) This Directive is complementary to the Commission recommendation on protecting journalists and human rights defenders who engage in public participation from manifestly unfounded or abusive court proceedings (“Strategic lawsuits against public participation”). This recommendation is addressed to Member States and it provides a comprehensive toolbox of measures including training, awareness-raising, support to targets of abusive court proceedings and data collection, reporting and monitoring of court proceedings against public participation. When transposing this Directive, Member States should pay particular attention to the implementation of the Commission’s Recommendation as regards, in particular, the inclusion of safeguards, similar to those provided for by this Directive, in relation to domestic cases not covered by this Directive’s scope, and the provision of legal assistance to defendants in an affordable and easily accessible manner, and consider the inclusion in their national transposition laws of targeted provisions to that effect. Member States should also be encouraged to consider establishing a fund to support victims of SLAPPs, which should be directly used for legal fees or the provision of legal aid and psychological support.

Removed:Recital 36 a (new): (36a) This Directive lays down rules on comprehensive support and preventive measures, non-financial support mechanisms such as the provision of legal aid and psychological support, as well as training, awareness-raising and data collection measures. It also seeks to ensure that data are collected by establishing common criteria at Union level. A national focal point should be established to gather and share information on all organisations that provide guidance and support for targets of abusive court proceedings against public participation. Such organisations could include associations of legal professionals, media and press councils, umbrella associations for human rights defenders, associations at Union and national level, law firms defending targets of manifestly unfounded or abusive court proceedings against public participation pro bono, legal clinics of universities and other non-governmental organisations.

Removed:Recital 36 b (new): (36b) To foster prevention of the initiation of SLAPPs and protection of targeted natural or legal persons, it is crucial to promote relevant information, awareness-raising, campaigns, education and training, including on their rights and protection mechanisms.

Removed:Recital 36 c (new): (36c) Training for journalists, other media professionals and human rights defenders should strengthen their capacity to deal with abusive court proceedings against public participation. It should focus on recognising such court proceedings, how to manage being targeted by them and inform them of their rights and obligations in order for them to be able to take the necessary steps to protect themselves against such proceedings. Training should also be provided to legal professionals in order to increase awareness of abusive court proceedings and be able to detect them at a very early stage.

Removed:Article 1 – paragraph 1: This Directive provides a set of minimum standards of protection and safeguards against manifestly unfounded or abusive court proceedings in civil matters, as well as the threats thereof, with cross-border implications brought against natural and legal persons engaging in public participation.

Removed:Article 2 – paragraph 1: This Directive shall apply to matters of a civil or commercial nature having cross-border implications, including interim and precautionary measures, counteractions or other particular types of remedies available under other instruments, whatever the nature of the court or tribunal. It shall not extend, in particular, to revenue, customs or administrative matters or the liability of the State for acts and omissions in the exercise of State authority (acta iure imperii).

Removed:Article 2 a (new): Article 2a / Minimum requirements / 1. Member States may introduce or maintain more favourable provisions than the safeguards provided for in this Directive against manifestly unfounded and abusive court proceedings in civil matters. / 2. The implementation of this Directive shall in no circumstances constitute grounds for a reduction in the level of safeguards already afforded by Member States in the matters covered by this Directive.

Removed:Article 3 – paragraph 1 – point 1: 1. ‘public participation’ means any statement or activity by a natural or legal person expressed or carried out in the exercise of the right to freedom of expression and information, academic freedom, or freedom of assembly and association, and preparatory, supporting or assisting action directly linked thereto, on a matter of public interest. This includes complaints, petitions, administrative or judicial claims, the participation in public hearings, the creation, exhibition, advertisement or other promotion of journalistic, political, scientific, academic, artistic, satirical communications, publications or works;

Removed:Article 3 – paragraph 1 – point 2 – point a: (a) fundamental rights, including gender equality, media freedom and consumer and labour rights, as well as public health, safety, the environment or the climate;

Removed:Article 3 – paragraph 1 – point 2 – point b: (b) activities of a person or entity in the public eye or of public interest, including governmental officials and private entities;

Removed:Article 3 – paragraph 1 – point 2 – point d: (d) allegations of corruption, fraud, embezzlement, money laundering, extortion, coercion, sexual harassment and gender-based violence, or other forms of intimidation, or any other criminal or administrative offence, including environmental crime;

Removed:Article 3 – paragraph 1 – point 2 – point e: (e) activities aimed to protect the values enshrined in Article 2 TEU, the principle of non-interference in democratic processes, and to provide or facilitate public access to information with a view to fighting disinformation;

Removed:Article 3 – paragraph 1 – point 2 – point e a (new): (ea) academic, scientific, research and artistic activities.

Removed:Article 3 – paragraph 1 – point 3 – introductory part: ‘abusive court proceedings against public participation’ mean court proceedings brought in relation to public participation that are fully or partially unfounded, characterised by elements indicative of a misuse of the judicial process for purposes other than genuinely asserting, vindicating or exercising a right and have as their main purpose to abusively prevent, restrict or penalize public participation. Indications of such a purpose can be:

Removed:Article 3 – paragraph 1 – point 3 – point -a (new): (-a) the misuse of economic advantage or political influence by the claimant against the defendant, leading to an imbalance of power between the two parties;

Removed:Article 3 – paragraph 1 – point 3 – point c: (c) intimidation, harassment or threats on the part of the claimant or his or her representatives, before or during the proceedings, as well as any previous history of legal intimidation by the claimant;

Removed:Article 3 – paragraph 1 – point 3 – point c a (new): (ca) the use in bad faith of procedural tactics, such as delaying proceedings, and choosing to pursue a claim that is subject to the jurisdiction of the court that will treat the claim most favourably, or the discontinuation of the cases at a later stage of the proceedings.

Removed:Article 4 – paragraph 2 – point a: (a) the act of public participation is relevant to more than one Member State, either due to the cross-border dimension of the act itself or due to the legitimate interest which the public may take in the matter concerned by the act, including if the act is accessible via electronic means, or

Removed:Article 5 – paragraph 3: 3. Member States shall provide that measures on procedural safeguards in accordance with Chapters III and IV can be taken by the court or tribunal seised of the matter ex officio.

Removed:Article 5 a (new): Article 5a / Expeditious court proceedings / Member States shall ensure that courts or tribunals seised with an application referred to in Article 5 act in the proceedings in relation to which the application has been sought using the most expeditious procedures available under national law, taking into account the circumstances of the case, the right to an effective remedy and the right to a fair trial.

Removed:Article 5 b (new): Article 5b / Assistance to natural or legal persons engaging in public participation / Member States shall ensure that natural or legal persons engaging in public participation have access, as appropriate, to support measures, in particular the following: / (a) comprehensive and independent information and advice which 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 their rights; and / (b) legal aid in accordance with Directive 2003/8/EC of the Council, and, in accordance with national law, legal aid in further proceedings, and legal counselling or other legal assistance; / (c) financial assistance and support measures, including psychological support, for those targeted by abusive court proceedings against public participation.

Removed:Article 7 – paragraph 1: Member States shall take the necessary measures to ensure that a court or tribunal seised of court proceedings against public participation may accept that associations, organisations and other collective bodies, such as trade unions, and any other legal entities which have, in accordance with the criteria laid down by their national law, a legitimate interest in safeguarding or promoting the rights of persons engaging in public participation may take part in those proceedings, either on behalf or in support of the defendant, with his or her approval or to provide information, in any judicial procedure provided for the enforcement of obligations under this Directive. This provision is without prejudice to existing rights of representation and intervention as guaranteed by other Union or national rules.

Removed:Article 8 – paragraph 1: Member states shall ensure that in court proceedings against public participation, the court or tribunal seised has the power to require the claimant to provide security for costs of the proceedings, including the full costs of legal representation incurred by the defendant and damages, if it considers such security appropriate in view of presence of elements indicating abusive court proceedings. Where national law provides for such possibility, security may be granted to the defendant at any stage of the court proceedings.

Removed:Article 9 – paragraph 2: 2. Member States shall establish time limits for the exercise of the right to file an application for early dismissal. The time limits shall be proportionate, reasonable and not render such exercise impossible or excessively difficult.

Removed:Article 14 – paragraph 1: Member States shall take the necessary measures to ensure that a claimant who has brought abusive court proceedings against public participation is ordered to bear all the costs of the proceedings, including the full costs of legal representation incurred by the defendant, unless such costs are excessive. Where national law does not guarantee the award in full of the costs of legal representation beyond statutory fee tables, Member States shall ensure that such costs are fully covered by other means available under national law, and, where appropriate, through compensation of damages in accordance with Article 15.

Removed:Article 15 – paragraph 1: Member States shall take the necessary measures to ensure that a natural or legal person who has suffered harm as a result of an abusive court proceedings against public participation is able to claim and to obtain full compensation for that harm, covering material or non-material harm, including reputational harm, without the need to initiate separate court proceedings to that end.

Removed:Article 16 – paragraph 1 a (new): 1a. Member States shall ensure that courts or tribunals imposing penalties take due account of: / (i) the economic situation of the claimant; / (ii) the nature and number of the elements indicating an abuse identified.

Removed:Article 16 a (new): Article 16a / National registers / Member states shall take appropriate measures to establish a publicly accessible 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.

Removed:Article 18 – paragraph 1: Member States shall ensure that, where abusive court proceedings on account of engagement in public participation have been brought in a court or tribunal of a third country against a natural or legal person domiciled in a Member State, that person shall have the right to seek, in the courts or tribunals of the place where he is domiciled, compensation of the damages and the costs incurred in connection with the proceedings before the court or tribunal of the third country, irrespective of the domicile of the claimant in the proceedings in the third country.

Removed:Chapter V a (new): Chapter Va / Jurisdiction, applicable law and relations with Union private international law instruments

Removed:Article 18 a (new): Article 18a / Jurisdiction for defamation claims / In defamation claims or other claims based on civil or commercial law which may constitute a claim under this Directive, the domicile of the defendant shall be considered to be the sole forum, having due regard to cases where the victims of defamation are natural persons.

Removed:Article 18 b (new): Article 18b / Relations with the Brussels I Regulation / With the exception of Article 18a of this Directive, this Directive shall not affect the application of the Brussels I Regulation.

Removed:Article 18 c (new): Article 18c / Applicable law for publications as an act of public participation / In claims regarding a publication as an act of public participation, the applicable law shall be the law of the place to which that publication is directed to. In the event of it not being possible to identify the place to which the publication is directed, the applicable law shall be the law of the place of editorial control or of the relevant editorial activity with regard to the act of public participation.

Removed:Article 18 d (new): Article 18d / Relations with the Rome II Regulation / With the exception of Article 18c of this Directive, this Directive shall not affect the application of the Rome II Regulation.

Removed:Chapter V b (new): Chapter Vb / Other provisions

Removed:Article 18 e (new): Article 18e / Union register / The Commission shall take appropriate measures to establish a publicly accessible Union register, on the basis of the information provided in accordance with Article 16a, of relevant court decisions falling within the scope of this Directive, in accordance with Union rules on the protection of personal data.

Removed:Article 18 f (new): Article 18f / Awareness-raising / Member States shall take appropriate action, including via electronic means, aimed at raising awareness about strategic lawsuits against public participation and the procedural safeguards set out in this Directive against them. Such action may include information and awareness-raising campaigns and research and education programmes, where appropriate in cooperation with relevant civil society organisations and other stakeholders.

Removed:Article 18 g (new): Article 18g / One-stop shop / Member States shall, with the support of the Commission, take appropriate measures to establish a ‘one-stop shop' comprising dedicated national networks of specialised lawyers, legal practitioners and psychologists, which targets of SLAPPs can contact, and through which they can receive guidance and easy access to information on, and protection against SLAPPs, including regarding legal aid, financial and psychological support.

Removed:Article 18 h (new): Article 18h / Training of practitioners / 1. With due respect for the independence of the legal profession, Member States shall recommend that those responsible for the training of lawyers make available both general and specialist training to increase the awareness of strategic lawsuits against public participation and the procedural safeguards against them provided for in this Directive. / 2. Without prejudice to judicial independence and differences in the organisation of the judiciary across the Union, Member States shall request that those responsible for the training of judges make available both general and specialist training to increase the awareness of judges of the needs of natural or legal persons engaging in public participation. / 3. Through their public services or by funding SLAPP support organisations, Member States shall encourage initiatives enabling those providing support to those targeted by manifestly unfounded or abusive court proceedings against public participation to receive adequate training.

Removed:Article 18 i (new): Article 18i / Cooperation and coordination of services / Member States shall take appropriate action to facilitate cooperation between Member States to improve the access of those targeted by manifestly unfounded or abusive court proceedings against public participation to information on procedural safeguards provided for in this Directive and under national law. Such cooperation shall be aimed at least at: / (a) the exchange of current practices; and / (b) the provision of assistance to European networks working on matters directly relevant to those targeted by manifestly unfounded or abusive court proceedings against public participation.

Removed:Article 18 j (new): Article 18j / Deontological rules for legal professionals / Member States shall, with due respect for the independence of the legal profession, encourage the adoption by professional associations of deontological rules that guide the conduct of legal professionals to discourage the taking of abusive lawsuits against public participation, and where appropriate, considering measures to address any violation of those rules.

Removed:Article 18 k (new): Article 18k / Data collection / 1. Member States shall, taking into account their institutional arrangements on judicial statistics, entrust one or more authorities to be responsible to collect and aggregate, in full respect of data protection requirements, data on abusive court proceedings against public participation initiated in their jurisdiction. / 2. Data referred to in paragraph 1 shall include, in particular, the following criteria: / (a) the number of abusive court proceedings against public participation cases, initiated in the relevant year; / (b) the number of abusive court proceedings against public participation cases dismissed early on account of relying on fully or partially unfounded claims; / (c) the number of court proceedings, classified by type of defendant (e.g. journalist, human rights defender, media organisation); / (d) the number of court proceedings, classified by type of plaintiff (e.g. politician, private person, company, whether the plaintiff is a foreign entity); / (e) figures about acts of public participation on account of which court proceedings were launched; / (f) figures on the estimated amount of initial damages requested by plaintiffs; / (g) description of the different legal bases relied on by plaintiffs and related figures; / (h) figures on the length of the proceedings, including all instances; / (i) figures on cross-border elements; / (j) as available, other data including on judicial costs of proceedings and, as relevant and appropr…

Removed:Article 20 – paragraph 1: Member States shall provide the Commission with all relevant information regarding the application of this Directive, in particular available data showing how those targeted by court proceedings against public participation have used the safeguards provided for in this Directive, by [3 years from the date of transposition]. On the basis of the information provided, the Commission shall by [4 years from the date of transposition] and every five years thereafter at the latest, submit to the European Parliament and the Council a report on the application of this Directive. The report shall provide an assessment of the evolution of abusive court proceedings against public participation and the impact of this Directive in the Member States while taking account of the national context in each Member State, including the implementation of the Commission Recommendation. If necessary, the report shall be accompanied by proposals to amend this Directive. Those reports shall be made public.

Removed:Article 21 – paragraph 1 – subparagraph 1: Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by [1 years from the date of entry into force of this Directive] at the latest. They shall forthwith communicate to the Commission the text of those provisions. When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.

Removed:Article 21 – paragraph 1 a (new): 1a. Member States shall apply this directive also to cases pending before a national court at the time of entry into force of the national rules transposing this Directive.