Brendan Howlin (Wexford, Labour) | Oireachtas source

I have five minutes to speak. It took me longer than five minutes to read the directive. It is a point that I make almost every day now as we go through directives that are important for the lives of people, when we only have a few minutes to participate in the debate. The matter at hand is an important issue because it concerns the functioning of our democracy. I suggest that if we asked people in the street what a strategic lawsuit against public participation, SLAPP, was, the vast majority would have no idea. Certainly, if we used the acronym SLAPP, they would have less of an idea what we are talking about. In fact, it is a hard thing to define. At its core, it is a notion that a powerful individual, company or entity seeks to silence its weaker critics by launching litigation that has no merit, but whose purpose is to cow, bully, intimidate and silence.

Obviously, there are a number of issues that arise. One is the problem that it cannot be determined that a lawsuit has no merit until the case is actually heard in some preliminary form. Obviously, powerful interests are entitled to use the courts, as is every other citizen, company and entity. We need to find solutions for that. My first question is whether this is the solution, or whether should we be dealing with it in our own domestic law. It is quite clear that we should be dealing with it in our own domestic law. I would go into it in more detail if I had more time, but bluntly, the actual viresof the Commission in advocating for this particular directive is on thin enough ground. It has multinational requirements because it is anchored in Article 81 of the Treaty of the Functioning of the EU, TFEU. For that article to apply, there must be a cross-border dimension. Article 81(1) states: "The Union shall develop judicial cooperation in civil matters having cross-border implications, based on the principle of mutual recognition of judgments and of decisions in extrajudicial cases." In particular, Article 81(2)(f)of the treaty states that the European Parliament and the Council may adopt measures aimed at ensuring "the elimination of obstacles to the proper functioning of civil proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable in the Member States". If I had more time, I would go into the detail of why I think the underpinning of the directive is thin enough legal grounds. However, it is part of a package of measures that I strongly support from the Commissioner for Justice, Mr. Didier Reynders. He is working on a package of measures aimed at tackling abusive litigation. I am afraid that too often, we see abusive litigation and the intimidation of people who voice their opinions on a range of matters. I must say that it has also been used by politicians to silence journalists by taking pre-emptive legal action. That was mentioned by the Minister of State in his contribution in relation to the report of the review of the Defamation Act 2009. Although the report does not use the term SLAPP directly, a number of submissions were made by journalist representative bodies from the print and broadcast media raising concerns that echoed those raised in relation to the intimidation of voices of criticism.

In essence, I strongly believe in and have no difficulty in supporting this directive, limited and all as it is. However, we really need to enact domestic legislation on the matter. That is my main message to the Minister of State today. Formulating co-operation and joined-up thinking on issues like this at an EU level is important, but if we look at the different legal structures of the member states, they are very different. Some have non-existent protection and others provide for vague enough protection. We must deal with the matter fundamentally in our own domestic legislation first. Let us prove best practice so that we can ensure access to the law, which is the right of every citizen and entity under our Constitution and is a welcome and good thing, is not used as a form of abuse to silence or intimidate voices of criticism.

Those with deep pockets can go to the courts, access expensive lawyers and they can prevail, despite the merits of their arguments, over weaker citizens or groups of citizens in our State.

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