The EU is swiftly advancing its resolution on strengthening democracy, media freedom, and pluralism within the Union.
In a bold move, the European lawmakers first passed a new media law, the European Media Freedom Act, which will have a significant impact on the way media is regulated in Europe (see our previous blogpost here, here and here). Not long after that, the EU introduced a directive (DIRECTIVE (EU) 2024/1069) to safeguard individuals and entities who engage in public participation from unwarranted claims or vexatious legal action. This new EU Directive is commonly referred to as the Anti-SLAPP Directive. The somewhat bulky term serves as an acronym and stands short for “strategic lawsuits against public participation”.
1. Background
The Anti-SLAPP Directive aims to provide safeguards for court proceedings that 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, typically using harassment and intimidation”, as stated in Recital 14 of the Directive. It emphasizes the particular importance of public participation and its crucial role as a watchdog on matters of public interest, such as detecting and combating organized crime, abuse of power, corruption, violations of fundamental rights, and extremism. The Directive demonstrates that specific court proceedings have the potential to exhaust the financial and other resources of defendants, thereby exerting a chilling effect and contributing to self-censorship. This, in turn, impoverishes public debate, which ultimately harms society as a whole. Ultimately, the Directive seeks to level the playing field in situations where there is a power imbalance between two parties, typically when the claimant has more financial or political clout than the defendant.
2. Who’s in scope?
The Directive covers unfounded claims or abusive court proceedings in civil matters with cross-border implications brought against natural and legal persons on account of their engagement in public participation.
- Unfounded claims or abusive court proceedings
Unfounded claims or abusive court proceedings are understood to be actions that aren’t genuinely about asserting or exercising a right. Instead, they are aimed at stopping, limiting or punishing public participation. The guideline mentions some indications for this, such as “the disproportionate, excessive or unreasonable nature of the claim or part thereof, including the excessive dispute value”, “the existence of multiple proceedings initiated by the claimant or associated parties in relation to similar matters”, “intimidation, harassment or threats on the part of the claimant or the claimant’s representatives”, “the use in bad faith of procedural tactics, such as delaying proceedings, fraudulent or abusive forum shopping or the discontinuation of cases at a later stage of the proceedings in bad faith” (see Art. 4).
- Civil matters
The Directive applies to civil proceedings, including procedures for interim and precautionary measures and counteractions, regardless of the type of court or tribunal involved. However, it shall not apply to revenue, customs, or administrative matters, nor to the liability of the state for acts and omissions in the exercise of state authority (acta iure imperii), criminal matters, or arbitration.
- Cross-border implication
There is a rebuttable presumption in favor of cross-border implications in Art. 5. Unless both parties are domiciled in the same Member State and all other elements relevant to the situation concerned are located only in that Member State, the case is considered to have cross-border implications. It's worth noting that the Member States might introduce more favorable provisions (see Art. 3), which could potentially include matters without any cross-border implications.
- Natural and legal person
The Directive aims at providing protection for natural and legal persons. It mentions in particular journalists, publishers, media organisations, whistleblowers, and human rights defenders, as well as civil society organisations, NGOs, trade unions, artists, researchers, and academics who are facing court proceedings initiated against them to deter their public participation.
- On account of engagement in public participation
The term “public participation” is defined as “the making of any statement or the carrying out of any activity by a natural or legal person in the exercise of the right to freedom of expression and information, freedom of the arts and sciences, or freedom of assembly and association, and any preparatory, supporting or assisting action directly linked thereto, and which concerns a matter of public interest” (see Art. 4). A matter of public interest is “any matter which affects the public to such an extent that the public may legitimately take an interest in it” (see Art. 4). Examples of matters of public interest include public health, the environment or the climate, activities of a natural or legal person that is a public figure, matters under consideration by a legislative, executive, or judicial body, or any other official proceedings. They also encompass allegations of corruption, fraud, or any other criminal offence, as well as activities aimed at protecting democratic processes against undue interference, particularly through combating disinformation.
3. Key safeguards and procedural consequences
The Anti-SLAPP Directive introduces a number of key safeguards and procedural consequences, including an early dismissal mechanism for lawsuits, the right for defendants to receive a full award of costs incurred, and the right to compensation for damages.
In principle, the defendant has to apply for these safeguards. Some measures, however, can be taken ex officio, (see Art. 6 para. 2).
In more detail:
- Art. 10 – Claimant is to provide security for estimated costs of the case
The court can ask the claimant to provide security for the estimated costs of the case, which could include the defendant's legal fees and, if allowed by national law, damages. In light of the right of access to justice, a security is only to be considered if there are indications that the proceedings are abusive or that there is a risk of the defendant not being reimbursed. Moreover, the security required shall not entail a judgement but serve as a precautionary measure to safeguard the effects of a final decision (see Recital 36).
- Art. 11 – Early dismissal of manifestly unfounded claim
Member States should ensure that courts and tribunals can dismiss claims against public participation “at the earliest possible stage in the proceedings” if they are clearly unfounded, in accordance with national law. However, if an early dismissal is granted, there must be an option to appeal (see Art. 13).
- Art. 14 – Reimbursement of costs
A claimant who initiates abusive court proceedings against public participation may be ordered to pay all types of costs associated with the proceedings as permitted under national law. This includes the full costs of legal representation incurred by the defendant. In the event that national law does not guarantee full reimbursement of legal representation costs beyond those set out in the statutory fee tables, Member States should ensure that such costs are fully covered, unless deemed excessive.
- Art. 15 – Penalties or other equally effective appropriate measures
Courts or tribunals dealing with cases 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” on the party who initiated the proceedings.
4. Next steps
Member States must enact the necessary laws, regulations and administrative provisions by 7 May 2026. With regard to Germany, it appears that national civil procedural law may already offer the necessary level of protection in many areas, provided it is interpreted in accordance with the Directive. However, new provisions have been introduced. For instance, Art. 14 stipulates that the costs of legal representation are recoverable even if they exceed the amounts specified in the statutory fee scales. German law currently allows for reimbursement of legal fees only up to the amount of the statutory fees. There are also no sanctions (see Art. 15) under German law for claimants who pursue alleged claims in an abusive manner. Furthermore, the introduction of an early dismissal of a claim, as provided for in Art. 11 could lead to tensions with the right of access to justice. The implementation process needs therefore to be closely monitored. It should also be noted that the next German government has committed itself to the timely implementation of the Directive as part of its coalition agreement. As with many other EU legislative processes, the Directive builds on a minimum consensus of Member States and sets minimum standards. It remains to be seen how fundamental rights, such as the right to freedom of expression and information, will be balanced with the right to an effective remedy and the right to a fair trial across the national jurisdictions within the EU.
Authors: Laura Knoke (Partner), Katharina-Sophia Rieger (Associate) and Jonas Gessner (Research Assistant)
