Advice concerning the introduction of anti-SLAPP legislation to protect freedom of expression in the European Union

Report commissioned by Article 19, Committee to Protect Journalists (CPJ), European Centre for Press and Media Freedom (ECPMF), Reporters Without Borders (RSF) and PEN International.

This paper was requested by Article 19, Committee to Protect Journalists (CPJ), European Centre for Press and Media Freedom (ECPMF) Reporters Without Borders (RSF), and PEN International. It is argued hereunder that European Union law enables the abuse of defamation law in a manner which has a chilling effect on press freedoms and activism, and which consequently weakens the rule of law in the Union. It is recommended that the following measures should be adopted with urgency:
(i) The rules on jurisdiction in the Brussels Ia Regulation should be amended with a view to removing the claimant’s unilateral right to choose a court or courts in which to pursue a claim. It is argued that jurisdiction in defamation cases should lie with the courts of the respondent’s domicile.
(ii) The absence of a common rule on choice of law in defamation cases results in a lack of legal certainty, and requires journalism on cross-border matters to apply ‘the lowest common denominator of press freedoms’. The Rome II Regulation should be amended with a view to harmonising rules on choice of law in defamation in a manner which renders the applicable law predictable to the parties.
(iii) A study of national procedural and substantive laws in defamation cases should be conducted with a view to adopting a directive which will harmonise minimum safeguards for freedom of expression, particularly with a view to dissuading vexatious litigation.
(iv) The above measures should be complemented by rule of law monitoring mechanisms which would include evaluation of the legal environment for journalism generally, and investigative journalism in particular.