Deadline Looms To Implement Anti-SLAPP Laws Across Europe

To start the new year off on a positive note, let’s look at what’s happening in the European Union. Directive (EU) 2024/1069 of the EU Parliament is approaching the 2 year anniversary, which is the deadline. Denmark has already opted out, but the other EU countries have until May 7th, 2026.

It’s encouraging sign to see more efforts to free speech from civil lawsuits. If Brussels can get this passed, can Ottawa as well?

Article 2
Scope
This Directive shall apply to matters of a civil or commercial nature with cross-border implications brought in civil proceedings, including procedures for interim and precautionary measures and counteractions, 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). This Directive shall not apply to criminal matters or arbitration and shall be without prejudice to criminal procedural law.

Article 3
Minimum requirements
1. Member States may introduce or maintain provisions that are more favourable to protect persons engaged in public participation against manifestly unfounded claims or abusive court proceedings against public participation in civil matters, including national provisions that establish more effective procedural safeguards relating to the right to freedom of expression and information.
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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.

Article 4
Definitions
For the purposes of this Directive, the following definitions apply:
(2) ‘matter of public interest’ means any matter which affects the public to such an extent that the public may legitimately take an interest in it, in areas such as:
(a) fundamental rights, public health, safety, the environment or the climate;
(b) activities of a natural or legal person that is a public figure in the public or private sector;
(c) matters under consideration by a legislative, executive, or judicial body, or any other official proceedings;
(d) allegations of corruption, fraud, or of any other criminal offence, or of administrative offences in relation to such matters;
(e) activities aimed at protecting the values enshrined in Article 2 of the Treaty on European Union, including the protection of democratic processes against undue interference, in particular by fighting disinformation;

Article 10
Security
Member States shall ensure that in court proceedings brought against natural or legal persons on account of their engagement in public participation, the court or tribunal seised may require, without prejudice to the right of access to justice, that the claimant provide security for the estimated costs of the proceedings, which may include the costs of legal representation incurred by the defendant, and, if provided for in national law, damages.

Article 12
Burden of proof and substantiation of claims
1. The burden of proving that the claim is well founded rests on the claimant who brings the action.
2. Member States shall ensure that where a defendant has applied for early dismissal, it shall be for the claimant to substantiate the claim in order to enable the court to assess whether it is not manifestly unfounded.

Article 13
Appeal
Member States shall ensure that a decision granting early dismissal pursuant to Article 11 is subject to an appeal.

Article 14
Award of costs
1. Member States shall ensure that a claimant who has brought abusive court proceedings against public participation can be ordered to bear all types of costs of the proceedings that can be awarded under national law, including the full costs of legal representation incurred by the defendant unless such costs are excessive.
2. Where national law does not guarantee the award in full of the costs of legal representation beyond what is set out in statutory fee tables, Member States shall ensure that such costs are fully covered, unless they are excessive, by other means available under national law.

Article 15
Penalties or other equally effective appropriate measures
Member States shall ensure that courts or tribunals seized of abusive court proceedings against public participation may impose effective, proportionate and dissuasive penalties or other equally effective appropriate measures, including the payment of compensation for damage or the publication of the court decision, where provided for in national law, on the party who brought those proceedings.

Some key takeaways from this include:

• “Matter of public interest” is defined very broadly
• Presumptive full indemnity (100% of costs) to Defendants
• Damages can be awarded to Defendants
• Plaintiff has the burden in showing why the case should continue
• Plaintiff can be ordered to put up a security deposit in order to continue
• Rulings can be appealed
• Applies to civil cases, not criminal
• Countries can implement stronger protections if they want

Keep in mind, this is just the framework. Individual countries will come up with their own versions. At least some of this should be familiar, given the cases covered here.

So, why should Canadians care? Because there’s the possibility to build on existing laws here. A national framework could be implemented here, or at least some could implement their own versions.

• Quebec — Provisions in the Code of Civil Procedure (2009)
• Ontario — Section 137.1 in the Courts of Justice Act (2015)
• British Columbia — Protection of Public Participation Act (2019)

Interestingly, the more “communist” provinces of Quebec and British Columbia have anti-SLAPP laws, while the more “conservative” provinces of Alberta and Saskatchewan do not. Whatever the country ends up as, or if any provinces leave, these protections are still important.

The EU Directive, much like the Canadian laws, is extremely broad in what “matters of public interest” can include. Otherwise, what would be the point? And there’s always the possibility of including topics not previously considered.

Anti-SLAPP exists in most, though not all, of the U.S. as well.

The Supreme Court of Canada has already weighed in several times in anti-SLAPP appeals, so it’s unlikely that including new provinces will contribute much in terms of precedent. Still, perhaps a visit to the local M.P. might be helpful.

(1) https://eur-lex.europa.eu/eli/dir/2024/1069/oj