The CASE Coalition welcomed the Council of Europe’s Recommendations on SLAPP Claims, approved by the Committee of Ministers on Friday 5 April 2024. year. The recommendations are comprehensive and, if implemented, could significantly limit the damage caused by SLAPP lawsuits.

The recommendations set firm and authoritative standards that EU member states must meet in order to ensure compliance with their obligations in the realm of human rights. The recommendations will be key in the process of transposing the new Anti-SLAPP Directive into the national legislation of the EU member states, and will also serve as a model for countries that are not members of the European Union but are in the Council of Europe, to introduce effective protection against SLAPP lawsuits.

The publication of the Recommendation followed a two-and-a-half-year drafting process through the Committee of Experts for Lawsuits Against Public Participation (MSI-SLP), which consists of representatives of member states and independent experts. CASE welcomes the transparency and inclusiveness of this process, which included a public consultation on the draft Recommendation in July 2023. year.

European Union member states should use these Recommendations, along with the Parliamentary Assembly (PACE) report published in January 2024, as key points of reference when enacting domestic laws against SLAPP lawsuits. As CASE has already pointed out, it is crucial that the European Union Directive be understood as establishing a minimum standard for protection against SLAPP claims. The recommendations supplement these standards and provide the details needed to provide meaningful protection to anti-SLAPP laws.

CASE has identified significant advantages that should serve to establish strong protections against SLAPP claims at the national level. At the same time, we have identified several ambiguities in the text—particularly regarding the early dismissal mechanism—that, if interpreted restrictively, could hinder efforts to curb the use of SLAPP suits. Member States should clarify and strengthen these provisions to ensure that the law is comprehensive, leaving little room for exploitation or circumvention.

The most important advantages:

In the definition of “judicial proceedings”, the Recommendation includes legal threats, while “public participation” includes a wide range of activities that are covered by the right to freedom of assembly and association, as well as freedom of expression. This includes the right to participate in peaceful protests and boycotts, which have been the target of SLAPP lawsuits in Europe in recent years.

Many of the principles underpinned in the EU Directive, the Recommendations extend to Council of Europe member states: these include recognition of the need for early rejection and a provision for reimbursement of costs – as well as protection against SLAPP claims from third countries. It also clarifies parts of the Directive that remain unclear or imprecise.

Key Points of Recommendation:

The recommendations provide a much stronger and more detailed set of standards than the EU directive, which will be crucial during transposition into the domestic legislation of EU member states – and will serve non-EU members to advocate for the adoption of meaningful mechanisms to protect against SLAPP lawsuits. It is particularly significant in connection with the provision that victims of SLAPP suits “be fully compensated for damages resulting from the SLAPP.”

The recommendations will assist courts and national authorities in identifying SLAPP claims, thanks to a broad list of “SLAPP indicators”. This will be key to the interpretation of Article 4(3) of the Directive, and in motivating Member States to ensure that the early rejection mechanism recognizes all adverse claims – not just those that are “manifestly unfounded”.

There are some ambiguities regarding the early rejection mechanism that could limit the application of this key measure – although there is potential, given certain allegedly conflicting standards, to interpret these provisions in a way that ensures the mechanism works effectively.