Ossian Smyth (Dún Laoghaire, Green Party) | Oireachtas source

On behalf of the Minister for Justice, Deputy McEntee, I thank the Cathaoirleach for facilitating this motion.

Senators will be aware 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 V of the Treaty on the Functioning of the European Union, TFEU. The proposed measure before members today has its legal base under Title V and therefore requires such approval.

The proposal is for an EU directive on minimum common measures in member states to protect individuals and bodies, especially journalists and human rights defenders, against a type of manifestly unfounded or abusive court proceedings commonly known as SLAPPs, which is short for strategic lawsuits against public participation. 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 increase in threats to democracy and human rights and, in particular, in physical and legal threats to media freedom and the safety of journalists.

A particular concern has been these so-called SLAPP actions. The proposal defines SLAPPs as manifestly unfounded or abusive court proceedings brought against those engaged in "public participation on matters of public interest" 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 the characteristic purpose of a SLAPP proceedings is not to seek access to justice but rather to close down freedom of expression and information that is essential in a democracy. SLAPP actions are therefore seen as not only a threat to the defendants themselves, 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 need to strike a careful balance between the right of freedom of expression and information in the public interest, on the one hand, and, on the other, 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 a SLAPP would remain a decision for the national court. The purpose of the proposed directive is rather to ensure every member state provides a minimum common toolbox of procedural safeguards to their judges and tribunals to protect defendants across the EU against SLAPP actions and to prevent these abusive actions from developing and proliferating.

I will outline the main minimum procedural safeguards proposed. The first safeguard is 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 his or her 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.

The second safeguard is provision for SLAPP defendants 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 court, if the court considers that appropriate due to "elements indicating abusive proceedings".

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

The fourth safeguard is, 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 the SLAPP plaintiff to 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.

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

Under the sixth safeguard it is proposed that courts and tribunals in any member state would also have power to refuse to recognise or enforce a 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 SLAPP action is brought in a non-EU country against a defendant domiciled in a member state, that defendant may seek compensation in their 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 available, to a greater or lesser extent, in our 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, for the proposed directive to apply, the proceedings, in accordance with the treaty legal base, must have "cross-border implications". Under the proposal, such implications are taken to exist where either or both of the parties is 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" - for example, statements or activities in respect of cross-border pollution, or allegations of cross-border money-laundering; or the plaintiff, or connected entities, has initiated concurrent or previous proceedings against the same or associated defendants in another member state.

Finally, it is useful to mention how some 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 and 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 enjoyment of fundamental rights; activities of a person or entity in the public eye or of public interest, which does not extend to satisfying curiosity about a person's private life; 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 as a term that is 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 main purpose to prevent, restrict or penalize 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, and are often combined with threats, intimidation or harassment.

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 of this year. That report noted that while the term "SLAPPs" was 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 from the print and broadcast media raised fears and concerns that echo those typical of SLAPP cases. One of the key recommendations of the report was to introduce "a new 'anti-SLAPP' mechanism, to allow a person to apply to court for summary dismissal of ... proceedings that he/she believes are a SLAPP". The Minister for Justice has indicated that she is preparing an amending defamation Bill to give effect to the recommendations of the report. The proposal for a directive, however, applies both more widely, in referring to all civil proceedings and not only defamation law, and more narrowly, in referring only to proceedings that have "cross-border implications".

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