The European Economic and Social Committee (hereinafter “EESC”) expressed its opinion on 23 February (Opinion 2023/C 75/20) on the Proposal for a European Directive on “Strategic lawsuits against public participation”, more commonly known as “SLAPP”. This phenomenon consists of the abuse of legal proceedings in order to stifle public debate. The plaintiffs, usually influential individuals, institutions or companies with wide financial resources, use their power to silence critical voices, suing them for defamation. Their goal is not necessarily to win the case, but rather to exhaust the financial, psychological and time resources of their opponents (who are often individual journalists, social and environmental activists, NGOs or whistleblowers). The latter, subjected to excessively long and costly legal procedures, are likely to come out discouraged from advancing their work. Against this growing threat to freedom of speech, the Proposal for a European Directive seeks to provide anti-SLAPP measures for the EU.
The EESC welcomes such a Proposal as “a decisive step to end these practices”, but also considers additional solutions. These include the exclusion of the possibility for a person other than the plaintiff to fund the action, the setting of a time limit for the procedure, and the possibility for the defendant to consolidate the proceedings in the same jurisdiction. Indeed, under the current state of European caselaw, the victim of an online defamation may bring several actions for damages in different Member States, which leaves the door open to “forum shopping”.
This possibility of a fragmentation of the claims before various jurisdictions was enshrined by the CJEU in the Shevill judgment (case C-68/93, 7 March 1995), and then applied to Internet defamation in the eDate judgment (case C-509/09, 25 October 2011). Concretely, a combined reading of the Brussels I bis Regulation (Regulation (EU) No. 1215/202) and of the Court’s caselaw allows to identify 4 competent jurisdictions for online defamation cases, including 3 “full” fora and one only “partial”. First of all, the courts of the defendant’s domicile (Article 4 paragraph 1 of the Regulation), the courts of the Member State in which the publisher of that content is established (Shevill judgment, pursuant to Article 7(2) of the Regulation), and the courts of the State in which the centre of the victim’s interests is based (eDate judgment) are conferred full jurisdiction to adjudicate not only on the totality of the damages, but also on the rectification and removal claims (Bolagsupplysningen judgment, case C-194/16, 17 October 2017). Conversely, the courts of each Member State in which the online content at issue is or was accessible have jurisdiction to award damages only for the harm caused in that particular territory. Initially, the latter hypothesis was provided for in the case of a defamation contained in a newspaper (as was the case in Shevill), considering that the medium itself restricts the number of copies printed and distributed. It was only in 2011, in the eDate judgment, that such a “mosaic” approach was applied to the online defamation, raising concerns about the phenomenon of SLAPPs.
Indeed, information posted on the Internet is immediately accessible anywhere in the world, regardless of its source language, thanks to automatic translation. Applying this “mosaic” approach to defamation committed online would therefore mean giving jurisdiction to the courts of the 27 EU Member States, each of which being competent for damages limited to their national territory. In practice, a participant in public debate (journalist or other) willing to denounce on the Internet activities that he or she considers ethically or environmentally questionable, could therefore face a significant number of defamation lawsuits in different European countries. Despite these concerns, the CJEU reaffirmed its position on several occasions, including in 2021 in the Gtflix Tv ruling (case C-251/20).
In order to protect SLAPPs’ victims, and to comply with the EU’s objectives, especially in terms of predictability and legal certainty, it seems appropriate to return to rules of jurisdiction “based on a close connection between the court and the action” (recital 16 of the Brussels I bis Regulation). Otherwise, as recommended by the EESC, the defendant should be able to consolidate the proceedings brought by the same or associated claimants in his designated jurisdiction.
For more information on online defamation claims, or to leave a comment or a suggestion, please contact us at the following email address: [email protected]
Marco Amorese
Jeanne Deniau