(1)

Article 2 of the Treaty on European Union states that the Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities.

(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), and to an effective remedy and to a fair trial (Article 47).

(3)

The right to freedom of expression and information as set forth in Article 11 of the Charter includes the right to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. While it is not an absolute right, any limitations thereto must be provided for by law, respect the essence of the right and be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others (Article 52(1) of the Charter).

(4)

In line with Article 52(3) of the Charter and with the Explanations relating to the Charter, Article 11 of the Charter should be given the meaning and scope of Article 10 on freedom of expression and information of the European Convention on Human Rights as interpreted by the European Court of Human Rights. Article 10 of the European Convention on Human Rights protects freedom of expression and information. Within the scope of application of the European Convention on Human Rights, any restriction must be prescribed by law, must be necessary in a democratic society, and be made in pursuit of the legitimate aims set out in Article 10(2) of the European Convention on Human Rights.

(5)

The European Convention of Human Rights also imposes a positive obligation on contracting states to safeguard the freedom and pluralism of the media and to create a favourable environment for participation in the public debate (1). The case law of the European Court on Human Rights further specifies that the freedom of expression constitutes one of the essential foundations of a democratic society and is applicable not only to information or to ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the state or any group in the population (2). It has further clarified that ‘in a democratic society even small and informal campaign groups (…) must be able to carry on their activities effectively’ and that ‘there exists a strong public interest in enabling such groups and individuals outside the mainstream to contribute to the public debate by disseminating information and ideas on matters of general public interest’ (3).

(6)

Journalists play an important role in facilitating public debate and in the imparting and the reception of information, opinions and ideas (4). It is essential that they are afforded the necessary space to contribute to an open, free and fair debate and to counter disinformation and other manipulative interference, including from actors from third countries. Journalists should be able to conduct their activities effectively to ensure that citizens have access to a plurality of views in European democracies.

(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 and make their voices 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, including 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.

(8)

A healthy and thriving democracy requires that people are able to participate actively in public debate. In order to secure meaningful participation, people should be able to access reliable information, which enables them to form their own opinions and exercise their own judgement in a public space in which different views can be expressed freely.

(9)

To foster this environment, it is important to protect journalists and human rights defenders from manifestly unfounded and abusive court proceedings against public participation (commonly known as ‘SLAPPs’). These court proceedings are either manifestly unfounded or fully or partially unfounded proceedings which contain elements of abuse justifying the assumption that the main purpose of the court proceedings is to prevent, restrict or penalise public participation. Indications of such abuse are the disproportionate, excessive or unreasonable nature of the claim or part thereof, the existence of multiple claims asserted by the claimant in relation to similar matters, or intimidation, harassment or threats on the part of the claimant or their representatives prior to the initiation of manifestly unfounded or abusive court proceeding. These proceedings constitute an abuse of court proceedings and put unnecessary burdens on courts as their aim is not to access justice but to harass and silence defendants. Long proceedings create burdens on national court systems.

(10)

Manifestly unfounded and abusive court proceedings against public participation can take the form of a wide array of legal abuses, mainly in civil or criminal matters, but also in administrative law matters and may be based on various grounds.

(11)

Such court proceedings are often initiated by powerful individuals or entities (for example lobby groups, corporations and state organs) in an attempt to silence public debate. They often involve imbalance of power between the parties with the claimant having a more powerful position than the defendant for example financially or politically. Although not being an indispensable component of manifestly unfounded or abusive court proceedings, where present an imbalance of power significantly increases the harmful effects as well as the chilling effects of court proceedings against public participation.

(12)

Manifestly unfounded or abusive court proceedings against public participation may have an adverse impact on the credibility and reputation of journalists and human rights defenders in particular and exhaust their financial and other resources. They may have adverse psychological consequences for their targets and their family members. Manifestly unfounded or abusive court proceedings against public participation endanger journalists and human rights defenders’ ability to conduct their activities. As a result of such proceedings, the publication of information on a matter of public interest may be delayed or altogether prevented. The existence of such proceedings may have more broadly a deterrent effect on the work of journalists and human rights defenders in particular, by contributing to self-censorship in anticipation of possible future court proceedings, leading to the impoverishment of the public debate to the detriment of society as a whole. The length of procedures, the financial pressure and the threat of criminal sanctions constitute powerful tools to intimidate and silence critical voices.

(13)

Those targeted by manifestly unfounded or abusive court proceedings against public participation often face multiple court proceedings simultaneously and in several jurisdictions. Court 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 manifestly unfounded or abusive 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.

(14)

The use of manifestly unfounded or abusive court proceedings against public participation is on the rise in the European Union. According to recent studies (5), such proceedings are increasingly used across Member States.

(15)

The European Parliament, in its Resolution of 25 November 2020 (6), condemned the use of SLAPPs to silence or intimidate investigative journalists and media outlets and create a climate of fear around their reporting of certain topics, calling on the Commission to present a proposal to prevent them. In its Resolution (7) of 11 November 2021 on Strengthening democracy and media freedom and pluralism in the EU: the undue use of actions under civil and criminal law to silence journalists, Non-Governmental Organisations (NGOs) and civil society, the European Parliament highlighted again the prevalence of the phenomenon and the need for effective safeguards for its victims across the Union.

(16)

The Council of Europe’s Platform to Promote the Protection of Journalism and Safety of Journalists (8) also reports an increasing number of alerts of serious threats to the safety of journalists and media freedom in Europe, including multiple cases of judicial intimidation. The 2021 annual Report of the partner associations to the Council of Europe Platform to Promote the Protection of Journalism and Safety of Journalists underlines the notable increase of SLAPP-related alerts reported in 2020 over the previous year, both in numbers of alerts and jurisdictions of Council of Europe Member States concerned (9). In its Recommendation on the protection of journalism and safety of journalists and other media actors (10) of 13 April 2016, the Council of Europe recommended its Member States to take the necessary legislative and/or other measures to prevent the frivolous, vexatious or malicious use of the law and legal process to intimidate and silence journalists and other media actors.

(17)

The Commission’s 2020 (11) and 2021 (12) Rule of Law Reports underline that in a number of Member States, journalists and others involved in protecting the public interest increasingly face threats and attacks in relation to their publications and their work, in various forms including the deployment of SLAPPs.

(18)

A stark example of the use of court proceedings against public participation in the Union is that of the journalist Daphne Caruana Galizia who, at the time of her assassination, was facing over 40 civil and criminal libel and defamation court proceedings related to her investigate work.

(19)

The European Democracy Action Plan (13) presented by the Commission on 3 December 2020 underlines the fundamental role of free and pluralistic media in democracies as well as the importance of civil society. It highlights among others the important role that independent and pluralistic media play in enabling citizens to make informed decisions, as well as in the fight against information manipulation and interference in the information space, including disinformation. In that context, the Commission already adopted Recommendation (EU) 2021/1534 on ensuring the protection, safety and empowerment of journalists and other media professionals in the European Union (14). That Recommendation aims to ensure safer working conditions for all media professionals, free from fear and intimidation, whether online or offline. In view of the increasing threat posed by manifestly unfounded or abusive court proceedings against public participation to media freedom and public participation, the Union should develop a coherent and effective approach to counter such proceedings. This Recommendation complements Recommendation (EU) 2021/1534 by providing specific recommendations on manifestly unfounded or abusive court proceedings against public participation. It goes beyond the protection of journalists and other media professionals and includes human rights defenders in its scope. This Recommendation should address the specific threat posed by manifestly unfounded or abusive court proceedings against public participation and by doing so, support the proper functioning of the checks and balances in a healthy democracy. It should provide guidance for Member States to take effective, appropriate and proportionate measures to address such proceedings and to ensure in this context in particular the protection of journalists and human rights defenders. The recommended measures should include raising awareness and developing expertise, in particular among legal professionals and the targets of manifestly unfounded or abusive court proceedings against public participation, to ensure that support is available for those targeted by such proceedings and to support enhanced monitoring.

(20)

In order to provide for efficient protection against manifestly unfounded or abusive court proceedings against public participation and prevent the phenomenon from taking root in the Union, Member States should ensure that their respective legal frameworks governing civil, criminal, commercial and administrative proceedings, provide for the necessary safeguards to address such court proceedings, in full respect of democratic values and fundamental rights, including the right to a fair trial and the right to freedom of expression. To provide consistent and efficient protection against manifestly unfounded court proceedings against public participation, Member States should aim to ensure that an early dismissal is available. They should also aim to provide other remedies against abusive court proceedings, namely the award of costs so that a claimant who has brought abusive court proceedings against public participation can be ordered to bear all the costs of the proceedings, the compensation of damages for any natural or legal person who has suffered harm as a result of abusive court proceedings against public participation, and the possibility to impose effective, proportionate and dissuasive penalties on the party who brought abusive court proceedings against public participation. The main objective of giving courts the possibility to impose penalties is to deter potential claimants from initiating abusive court proceedings against public participation. Such penalties should be proportionate to the elements of abuse identified. When establishing amounts for penalties, courts could take into account the potential for a harmful or chilling effect of the proceedings on public participation, including as related to the nature of the claim, whether the claimant has initiated multiple or concerted proceedings in similar matters and the existence of attempts to intimidate, harass or threat the defendant.

(21)

Member States should aim to include in their national laws similar safeguards for domestic cases as those included in Union instruments that seek to address manifestly unfounded and abusive court proceedings against public participation for civil matters with cross-border implications. This would provide a consistent and efficient protection against such court proceedings and would contribute to prevent the phenomenon from growing roots in the Union.

(22)

Member States should specifically review their legal frameworks applicable to defamation to ensure that existing concepts and definitions cannot be used by plaintiffs against journalists or human rights defenders in the context of manifestly unfounded or abusive court proceedings against public participation.

(23)

In order to prevent a chilling effect on the public debate, Member States should ensure that penalties against defamation are not excessive and disproportionate. They should pay particular attention to the Council of Europe’s guidelines and recommendations (15) addressing the legal framework for defamation, in particular criminal law. In this context, Member States are encouraged to remove prison sentences for defamation from their legal framework. The Parliamentary Assembly of the Council of Europe in its Resolution 1577 (2007) (16) has called on its Member States, which still provide for prison sentences for defamation, even if they are not actually imposed, to abolish them without delay. Member States are also encouraged to favour the use of administrative or civil law to deal with defamation cases, provided that such provisions have a less punitive effect than those of criminal law (17).

(24)

Dealing with defamation cases from a criminal law angle should only be used as a last resort and responses through administrative or civil law should be favoured instead, in line with guidance from international organisations. The United Nations’ Human Rights Committee (18) and the Organization for Security and Cooperation in Europe (19) have recommended the removal of defamation from criminal law statutes. Similarly, the Council of Europe has expressed reservations in this context (20).

(25)

The right to the protection of personal data is further concretised in Regulation (EU) 2016/679 of the European Parliament and of the Council (21). The right to the protection of personal data is not an absolute right. Article 85 of the GDPR provides that Member States shall by law reconcile the right to the protection of personal data with the right to freedom of expression and information, including processing for journalistic purposes and the purposes of academic, artistic or literary expression.

(26)

Member States should encourage self-regulatory bodies and associations of legal professionals to align, where necessary, their deontological standards, including codes of conduct, with this Recommendation. Member States should also ensure, as relevant, that the deontological standards which seek to discourage or prohibit legal professionals from engaging in conduct which might constitute an abuse of process or an abuse of their other professional responsibilities towards the integrity of the legal process, and their corresponding disciplinary sanctions, cover manifestly unfounded or abusive court proceedings against public participation. This should be accompanied by appropriate awareness raising and training activities in order to increase knowledge and efficacy of existing deontological standards that are relevant to manifestly unfounded or abusive court proceedings against public participation.

(27)

Legal professionals are key actors in manifestly unfounded or abusive court proceedings against public participation, either by representing litigants, prosecuting individuals or adjudicating disputes. Therefore, it is crucial that they have the necessary knowledge and skills to do so. Member States should support and offer training opportunities to these legal professionals. Training could substantively contribute to building their knowledge and capacity in how to detect manifestly unfounded or abusive court proceedings against public participation, including those with a third-country element, and react appropriately. Such training should address the judiciary and the judicial staff at all court levels including judges, prosecutors, court and prosecutors’ office staff, as well as any other justice professionals associated with the judiciary or otherwise participating in the administration of justice, irrespective of the definition in national law, legal status or internal organisation, at the regional and local levels, where manifestly unfounded or abusive court proceedings against public participation may appear in the first instance. Such training should also address other legal professionals such as qualified lawyers. Developing local training capacity can contribute to the long-term sustainability of the training.

(28)

Extending such training to journalists, press council members, media professionals and human rights defenders would help them to recognise when they are confronted with such court proceedings and provide them with critical legal skills to reduce their risks of being exposed to manifestly unfounded or abusive court proceedings against public participation or equip them with better knowledge to better address it. It could also enable them to engage in robust reporting on SLAPPs. Training for journalists should also refer to the ethical standards and guidelines set out by national press or media councils. To contribute to overall capacity building and strengthen the institutional response to manifestly unfounded or abusive court proceedings against public participation, such training could also involve data protection authorities, National Human Rights Institutions, ombudsman institutions and media state regulatory bodies.

(29)

Providers of legal training and associations of legal professionals are very well positioned to impart training on manifestly unfounded or abusive court proceedings against public participation, as well as to determine the objectives of such training and to assess the most suitable training methodology. Training delivered by legal professionals to other legal professionals allows all to learn as a group, to better share experiences and to foster mutual trust. Exchanges of relevant practices at the European level should be encouraged, including with the support of the Commission, with the involvement of the European Judicial Training Network (EJTN). Involvement of legal practitioner’s and their professional associations, from preparing needs analyses to the evaluation of results, is of paramount importance to ensuring the effectiveness and sustainability of training activities.

(30)

Training should address freedom of expression and information and other fundamental rights, under the EU Charter of Fundamental rights of the European Union and the European Convention on Human rights and national law and include practical guidance on how to apply relevant case-law, restrictions to and articulation between fundamental rights, including freedom of expression, procedural safeguards as well as other relevant provisions under national law. Due account should be taken of Council of Europe’s handbook for legal practitioners on protecting the right to freedom of expression under the ECHR (22).

(31)

Training should, among other things, address the protection of personal data which may be used to initiate manifestly unfounded or abusive court proceedings against public participation. It should also address information manipulation and interference, including disinformation.

(32)

Training should consider the national legal framework and context. Combining these with the guidance developed by the Council of Europe, testimonials from targets of manifestly unfounded or abusive court proceedings against public participation and best practices from other Member States in a structured and coherent manner could contribute to the successful learning objectives associated with training on manifestly unfounded or abusive court proceedings. Training may also be used to foster exchange of best practices between Member States.

(33)

To reach a wider audience and to foster support, training on manifestly unfounded or abusive court proceedings against public participation should also make best use of new technologies, including online training. Access to e-resources, up-to-date material, and stand-alone learning tools on relevant legislation and guidance would complement the benefits of such training activities.

(34)

In order to foster synergies with similar initiatives on the training of legal professionals, training modules on manifestly unfounded or abusive court proceedings on public participation could be included in training on related topics, such as freedom of expression and legal ethics. The use of existing materials and training practices such as those promoted on the European e-Justice Portal, the Unesco Global Toolkit for Judicial Actors (23) and the Council of Europe’s HELP (Human Rights Education for Legal Professionals) (24) online courses should be encouraged.

(35)

Including manifestly unfounded or abusive court proceedings against public participation in the law and journalism curricula would help equip legal professionals and journalists with better knowledge to recognise such proceedings and equip them with specific knowledge to respond accordingly, and support the development of expertise and professional competencies among lecturers. Such knowledge could be provided by higher education institutions in complementary courses or seminars during the final years of a degree programme, for instance to law students of law and journalism.

(36)

Member States should support awareness raising campaigns on manifestly unfounded or abusive court proceedings against public participation organised among others by national entities, including National Human Rights Institutions and civil society organisations.

(37)

Communication activities on manifestly unfounded or abusive court proceedings against public participation could take the form of publications, messages, public meetings, conferences, workshops and webinars.

(38)

The targets of manifestly unfounded or abusive court proceedings against public participation often have difficulties finding information on available support resources. To facilitate the identification of entities or bodies able to provide assistance on manifestly unfounded or abusive court proceedings and to ensure the effectiveness of support against such proceedings, information should be collected and made available at a single point, be free of charge and easily accessible. To that end, each Member State should establish one national focal point that gathers and shares information on available resources.

(39)

An underlying goal of awareness raising activities on manifestly unfounded or abusive court proceedings against public participation should be to promote awareness of the importance of a public space that enables democratic participation and allows citizens to have access to a plurality of views and reliable information, free from bias.

(40)

Awareness raising campaigns should be coordinated with national focal points and other competent authorities to ensure their effectiveness. They should also seek synergies with awareness raising campaigns on compatible topics such as those focusing on fostering of open, free and fair debate and the protection of the right to freedom of expression and should be integrated with awareness raising activities that promote active civic participation, pluralism of views and access to reliable information. They should also seek synergies, as relevant, with resilience building on media, information literacy, journalistic standards and fact-checking in the context of measures addressing disinformation, information manipulation, and interference including from abroad. The target audience could include, inter alia, specific groups, such as media professionals, legal professionals and members of civil society organisations, communication professionals, academics, think tanks, politicians, civil servants, public authorities and private corporations.

(41)

Member States should aim to ensure, by any means they consider appropriate, the availability of information on the procedural safeguards and other safeguards under their national legal frameworks, including information on the entities or bodies which can be contacted to provide assistance against manifestly unfounded or abusive court proceedings against public participation.

(42)

Such support resources may include law firms that defend pro bono the targets of manifestly unfounded or abusive court proceedings against public participation, the legal clinics of universities which provide such support, organisations that register and report on SLAPPs, and organisations that provide financial and other assistance to the targets of manifestly unfounded or abusive court proceedings.

(43)

The targets of manifestly unfounded or abusive court proceedings against public participation need to be adequately equipped to face such proceedings. It is therefore necessary to develop capacities in Member States in order to provide support to those targeted by such proceedings. Member States should offer funding and promote funding available at Union level to organisations that provide guidance and support for targets of manifestly unfounded or abusive court proceedings.

(44)

A more systematic monitoring of manifestly unfounded or abusive court proceedings against public participation is necessary to better tackle the phenomenon. Data collected should include sufficient information for authorities and other relevant stakeholders to quantify and better understand it including in view of providing the necessary support to targets. Member States should entrust, taking into account their institutional arrangements on judicial statistics (25), one or more authorities with collecting and aggregating data on manifestly unfounded or abusive court proceedings against public participation initiated in national courts. These authorities may collect the data from several stakeholders. To ease the collection of data, the authorities entrusted to collect data may establish contact points so that judicial authorities, professional organisations, non-governmental organisations, human rights defenders, journalists and other stakeholders can share data on manifestly unfounded or abusive court proceedings. Member States should entrust one of these authorities with coordinating the information and reporting the aggregated data collected at national level to the Commission on a yearly basis starting by the end of 2023. Member States should ensure the accountability of the data collected. For this purpose, they should ensure that the data collection process follows professional standards and that the authorities entrusted with data collection and statistics enjoy sufficient autonomy. Data protection requirements should be complied with.

(45)

When entrusting authorities with data collection and reporting, Member States could consider establishing synergies with relevant instruments in the area of the rule of law and the protection of fundamental rights. National Human Rights Institutions, where established, may play an important role as well as other entities such as ombudspersons’ offices, equality bodies, or competent authorities such as those designated under the Directive (EU) 2019/1937 of the European Parliament and of the Council (26) may also be relevant. National focal points providing an overview of support resources and the entities or authorities entrusted to collect and report data could be situated in the same organisation, taking into account the requirements and criteria described in this Recommendation.

(46)

The authorities entrusted to collect data should publish information on manifestly unfounded or abusive court proceedings against public participation, in accessible formats on their websites, and, as relevant via other appropriate tools. When doing so, they should ensure that fundamental rights including the right to privacy and to the protection of personal data of those individuals involved in manifestly unfounded or abusive court proceedings against public participation are fully respected.

(47)

To delineate the duration of proceedings concerning manifestly unfounded or abusive court proceedings, precise information on the events, acts or actions that started and closed such proceedings and the dates on which they occurred should be collected whenever possible. The collected data should also include, as relevant, information about the background of a case, for example, where there have been repetitive preceding court proceedings against the same defendant or by the same plaintiff.

(48)

As necessary, the EU expert group against SLAPP established by the Commission (27) could support the development across Member States of comparable criteria that can be easily applied by the authorities entrusted to collect and report data on manifestly unfounded or abusive court proceedings against public participation.

(49)

The EU expert group against SLAPP supports the exchange and dissemination of practice and knowledge among practitioners on SLAPP related issues. It could provide among others technical assistance to authorities in setting up focal points, developing training material and organising legal assistance.

(50)

The Citizens, Equality, Rights and Values (CERV) Programme, established by Regulation (EU) 2021/692 of the European Parliament and of the Council (28), aims to protect and promote the rights and values enshrined in the Treaties and the Charter. In order to sustain and further develop democratic societies based on the rule of law, the CERV programme provides, inter alia, for the possibility to fund activities linked to capacity building and awareness on the Charter including on freedom of expression. The Justice Programme, established by Regulation (EU) 2021/692 (29) provides, inter alia, for the possibility to fund activities linked to judicial training, with a view to fostering a common legal and judicial culture based on the rule of law, and to support and promote the consistent and effective implementation of Union legal instruments that are relevant in the context of the Programme,