Niall Collins (Limerick County, Fianna Fail) | Oireachtas source

I move:

That Dáil Éireann approves the exercise by the State of the option or discretion under Protocol No. 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, to take part in the adoption and application of the following proposed measure: Proposal for a Directive of the European Parliament and of the Council on protecting persons who engage in public participation from manifestly unfounded or abusive court proceedings ("Strategic lawsuits against public participation"), a copy of which was laid before Dáil Éireann on 30th May, 2022.

On behalf of the Minister for Justice, Deputy McEntee, I thank the Ceann Comhairle for facilitating this motion. Deputies will be aware that the prior approval of the Oireachtas is required under Article 29.4.7° of the Constitution if Ireland wishes to take part in an EU measure whose legal base falls under Part 3, Title 5 of the Treaty on the Functioning of the European Union, TFEU. The proposed measure before the House today has its legal base under Title 5 and, therefore, it requires such approval. The proposal is for an EU directive on minimum common standards in member states to protect individuals and bodies, particularly journalists and human rights defenders, against the type of manifestly unfounded or abusive court proceedings commonly known as strategic lawsuits against public participation, SLAPP.

The proposal, which was first presented by the European Commission on 27 April 2022, forms part of a number of initiatives by the European Commission to reinforce the application of the Charter of Fundamental Rights of the European Union and to strengthen protection for democracy and the rule of law at EU level. It responds to increasing concerns expressed by the Council of Europe, the European Parliament, the European Commission and NGOs across Europe concerned with press freedom and the protection of human rights about the rising threats to democracy and human rights, particularly in physical and legal threats to media freedom and the safety of journalists. A particular concern has been the SLAPP actions. The proposal defines "SLAPP" as manifestly unfounded or abusive court proceedings brought against those engaging in public participation on matters of public interest in order to deter them from such participation. The objective is less to reach a determination of the main proceedings than to threaten, exhaust and silence the defendant by using procedural strategies such as artificially inflating legal costs, maximising delays, threatening the defendant with exorbitant penalties, making unfounded accusations or issuing multiple proceedings in different jurisdictions.

The proposal explains that the characteristic purpose of SLAPP proceedings is not to seek access to justice, but rather to close down the freedom of expression and the information that is essential in a democracy. SLAPP actions are therefore seen as not only a threat to the defendant but also an abuse of court time and resources and a potential threat to democracy, fundamental rights and the public interest. Obviously, the proposed directive will have to strike a careful balance between the right to freedom of expression and information in the public interest and the rights of access to justice and to an effective remedy. It is important to underline that, under the proposal, whether a particular set of proceedings amounts to SLAPP would remain a decision for the national court. The purpose of the proposed directive is rather to ensure that every member state provides a minimum common toolbox of procedural safeguards to their judges and tribunals in order to protect defendants across the EU against such actions and to prevent these abusive actions from developing and proliferating.

I will outline the main minimum procedural safeguards that are proposed. First is the provision for SLAPP defendants to seek early dismissal of proceedings as manifestly unfounded. In that application the burden of proof falls on the SLAPP plaintiff to show that the action is not manifestly unfounded. If the defendant seeks early dismissal, the main proceedings must be stayed until a final decision is made on the early dismissal application, which must be treated as an accelerated procedure.

Second is the provision for an SLAPP defendant to seek a court order that the SLAPP plaintiff provides advance security for the defendant's costs, for example, that the plaintiff lodges money in the court if the court considers that appropriate due to elements indicating abusive proceedings.

Third is the provision that the court may accept third party intervention in the SLAPP proceedings by specialised NGOs on behalf of the defendants. The role of the NGO may be either to provide support to the defendant or to provide relevant information to the court.

Fourth, if the court or tribunal concludes that the proceedings are abusive, it must have power to impose effective, proportionate and dissuasive penalties on the SLAPP plaintiff and to order that the plaintiff bear the full costs of the proceedings. These should include the full costs of legal representation incurred by the SLAPP defendant unless such costs are excessive.

Any SLAPP defendant who has suffered harm as a result of the proceedings must be able to claim and obtain full compensation for that harm.

It is proposed that the courts and tribunals in any member state would also have the power to refuse to recognise or enforce the judgment of a non-EU state, if it arises in proceedings which, under the law of the member state, would have been considered a SLAPP. Member states are also required to ensure that if an abusive action is brought in a non-EU country against a defendant domiciled in a member state, that defendant may seek compensation in his or her member state of domicile for damages and costs incurred in the third-country proceedings, irrespective of the SLAPP plaintiff's country of domicile.

Many of these procedural safeguards are already, to a greater or lesser extent, available in our own legal system. It is important to note that the proposed directive is limited to matters of a civil or commercial nature. It does not cover any criminal proceedings. In addition, the proposed directive to apply the proceedings in accordance with the treaty legal base must have cross-border implications. Under the proposal, these are taken to exist where either or both of the parties are not domiciled in the same member state as the court seized of the proceedings; the act of public participation against which the court proceedings have been taken is relevant to more than one member state; or the plaintiff or connected entities have initiated concurrent or previous proceedings against the same or associated defendants in another member state.

It is useful to mention how some of the key terms are defined in the proposed directive. "Public participation" is defined as any statement or activity expressed or carried out in the exercise of the right to freedom of expression or information on a matter of public interest, along with preparatory supporting or assisting activities. A "matter of public interest" is defined as any matter which affects the public to such an extent that it may legitimately take an interest in it in areas such as public health, safety, the environment, climate, or the enjoyment of fundamental rights; activities of a person or entity in the public eye or of public interest; allegations of corruption, fraud or criminality; activities aiming to fight disinformation; and matters under public consideration or review by a legislative, executive or judicial body, or any other public official proceedings. "Manifestly unfounded" proceedings are not defined by the proposal. The Commission considers this a term recognised in member states' legal systems and can be interpreted and applied by national judges at their discretion. "Abusive proceedings" in this context are defined as proceedings that are fully or partially unfounded and have as their purpose to prevent, restrict or penalise public participation. According to the proposal, such proceedings typically involve litigation tactics used in bad faith, such as delaying proceedings, causing disproportionate costs to the defendant in the proceedings, or forum shopping, which are often combined with threats, intimidation or harassment.

I should of course mention that in Ireland the issue of SLAPPs has already been considered in the report of the review of the Defamation Act 2009, which the Government approved for publication on 1 March 2022. The report noted that while the term SLAPPs is not explicitly used in submissions to the public consultation on reform of the Defamation Act 2009, a number of submissions from journalists, representative bodies and the print and broadcast media raised fears and concerns that echo those typical of SLAPP cases. The key recommendations of the defamation report include a recommendation to introduce a new anti-SLAPP mechanism to allow a person to apply to the court for summary dismissal of the proceedings that he or she believes are a SLAPP. The Minister for Justice has indicated she is preparing and amending the defamation Bill to give effect to the recommendations of the report. Deputies will recall the defamation report was discussed in the House on 11 May and this recommendation was widely supported. However, the proposal in the directive applies both more widely and more narrowly in referring only to proceedings that have cross-border implications.

This is clearly an important proposal. Subject to the approval of both Houses, it appears desirable for Ireland to opt into the proposal at this stage, before its adoption, in order to ensure we can participate fully in the council's deliberations and the final text of the directive takes full account of our legal systems. We therefore recommend the motion to the House and ask Deputies to support it.

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