Before being murdered, the Maltese journalist Dafne Caruana accumulated more than 40 complaints against her for her articles against corruption on the Mediterranean island. They intended to dissuade her from publishing them. To stop this intimidating and abusive practice of the courts used against journalists, NGOs, activists or trade unionists from companies and even public institutions, the European Commission has approved this Wednesday a legislative package that seeks to promote the immediate filing of these complaints as soon as the judges detect indications of these excesses that, following the reasoning of the Community Executive, undermines the work of civil society and journalism in democracies.
The step taken by the Commission is, in fact, twofold. On the one hand, has given the green light to a draft directive which plans to harmonize the criteria by which the courts throughout Europe may expeditiously declare inadmissible complaints that are considered disproportionate or repetitive. For this, the first thing it does is define, albeit broadly, what an abusive claim is: “Proceedings brought to court in relation to public participation [en el ejercicio de la libertad de expresión e información] that are considered totally or partially unfounded and that have the main objective of avoiding, restricting or penalizing that public participation”. Their identification will be based on indications that are considered disproportionate due to the “excessive or irrational nature of all or part of the lawsuit”, “the repetition of multiple procedures initiated by the plaintiff or parties associated with similar matters” or “intimidation, harassment or threats by the plaintiff or his representatives”.
As soon as these indications appear, the directive will give judges the possibility of refusing to issue extra-community court orders in the case of complaints in which it is seen that “in whole or in part they are manifestly unfounded”. Lawsuits that are considered cross-border will fall under the community rule, which will be those that affect two member states (a company files a lawsuit in one country for what is published in another) and also —and this is new— disputes that, despite occurring in one Member State may be considered to have effects in another. An example of the latter could be a report published in a country denounced by a subsidiary in that same country, but which also has an impact wherever the parent company is.
In addition to the swift filing of the complaint, the directive will force the complainant to pay the expenses caused by his claim “even if the complaint is not manifestly unfounded, [pero] there are indications of abusive proceedings and the prospect of success in a main proceeding is slim”. Among these expenses, the cost of the defendant’s defense may be included. In the same dissuasive line, it opens the door for the defendant to request “full” compensation for pecuniary and non-pecuniary damage. In the first case, lawyers and medical expenses (such as a psychologist) are included if they are related to the process. And in the second would be reputational damage and even “vital and relationship deterioration” and, “in general, any type of intangible damage.”
Homogenization in the Twenty-seven
The most ambitious point of the rule proposed by the Commission, which must now pass through the legislative filter of the European Parliament and the Council of the EU, concerns the possibility that the courts of one EU country can reject the request of another court to take action against a defendant if there are indications that the case stems from an abusive lawsuit. Sources from Brussels admit that this point has many signs of not passing the sieve of the Council, that is, the governments of the Member States. One of the main objectives of the directive in its final purpose of stopping this intimidation tactic is to homogenize the legislation of the Twenty-seven to avoid the proliferation of the same lawsuits in different States, in search of the most convenient jurisdiction for their claims.
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As the directive only affects matters that are considered to be cross-border, the Commission also issues a recommendation for Member States to adapt their laws in strictly national cases. This will not be mandatory, since, justifies Brussels, it is already entering the field of criminal law. One of the pieces of advice from the Community Executive in this case is that the state legislation on defamation, “which is one of the most used instruments in these judicial abuses”, does not have “an unjustified impact on freedom of expression, and the existence of free, plural and open media”. Another bets on the training of justice professionals so that they detect these situations and also be vigilant to avoid organized campaigns.
If the Commission has decided to launch this initiative now, it is because it has detected a growing number of lawsuits launched with the sole objective of silencing critical voices or preventing the dissemination of information that is uncomfortable for certain public or private powers. These complaints are usually seen in matters of public and environmental health, in allegations of corruption or fraud and even in the fight against disinformation.
Conditionality mechanism for Hungary
Together with this significant step to protect freedom of information and expression, and also in the field of the rule of law, the Commission has taken this Wednesday the first formal step to launch the so-called conditionality mechanism that allows the EU to withhold funds to Hungary for violating the basic values of The Union. The movement had been announced by the President of the Commission, Ursula von der Leyen, a few weeks ago in the European Parliament after the EU Court of Justice endorsed the validity of this mechanism, approved in January 2021, and that Budapest’s responses to Brussels’ requirements have not been satisfactory.
At the time of opening the file, the Commission argues that it has detected irregularities that harm the EU budgets. Those findings would occur in public contracting, audits or transparency. Hungary, along with Poland, is one of the countries that has not yet approved its recovery plan for not accepting reforms related to the quality of its rule of law. In the case of Warsaw, the differences with Brussels are linked to judicial independence; with the government of Viktor Orbán is due to the lack of anti-corruption measures.