Statement of the Association of Commercial Television on the proposal for a Directive of the European Parliament and of the Council on the protection of persons involved in public participation from manifestly unfounded or abusive legal proceedings (“strategic lawsuits against public participation”, “SLAPPs”)
Updated statement of the Association of Commercial Television (AKTV) following an agreement by EU Member States on a general approach. As we stated in our position last July, we support and welcome the efforts of the EP and the Council to promote democracy and strengthen the plurality of views in order to protect journalists and other human rights defenders in general, even though this type of action with a cross-border element is almost non-existent in our country.
Just as the Czech Republic expressed some concerns about the possible impact on national law in its official position on the draft directive drawn up by the Ministry of Justice last year, we subsequently commented in our position of July 2022 on whether the Commission’s proposal might in some areas go beyond the legal basis on which the EU is established, as well as whether the compulsory introduction of hitherto unknown procedural institutes could potentially contravene the principle of the procedural autonomy of the Member State, i.e. whether the procedural rules contained in the draft directive, which are still alien to Czech law, could lead to changes in national procedural legislation and be used in proceedings where international overlaps can hardly be seen.
For the above reasons, we very much appreciate that the negotiations held on the text took into account the concerns raised and that the draft text of the directive was modified to the extent that for the majority of the provisions considered – not only by us – to be at least controversial, the Member States negotiated a wording taking into account the differences in the national legal systems of the Member States and leaving more room in the modified draft for the individual Member States to appropriately incorporate the intended objective into existing national legislation.
In particular, we appreciate the modifications made to the following Articles:
– Article 7: Third party intervention;
– Article 9: Early dismissal;
– Article 11: Accelerated procedure;
– Article 12: Burden of proof; and
– Article 14: Award of costs.
Although we can imagine further refinement of the proposed text of the forthcoming directive, such as narrowing some of the definitions in Article 3, which would certainly contribute to an easier application of the proposed provisions, in view of the changes made to the text of the directive in the course of the above-mentioned negotiations, and also in view of the fact that we are in line with the efforts of the EP and the Council to promote democracy and strengthen the plurality of views with the aim to protect journalists and other human rights defenders, since freedom of expression and free media are essential for the functioning of the rule of law, we support the text of the directive as it stands after the general approach has been reached by the Member States.
As broadcasters, we support and welcome the efforts of the EP and the Council to promote democracy and strengthen the plurality of views in order to protect journalists and other human rights defenders in general.
However, as it follows from the Czech Republic’s official position on the draft directive of 25 May 2022 prepared by the Ministry of Justice, this type of lawsuit is almost non-existent in the Czech Republic, and the issue of SLAPPs is not perceived as cross-border from the Czech perspective. We also have to agree with the opinion of the Ministry of Justice that from the perspective of the Czech Republic the Commission’s proposal may go beyond the chosen legal basis in some areas, and that the mandatory introduction of previously unknown procedural institutes, which may potentially contradict the principle of procedural autonomy, is highly controversial, and there is a real risk that the procedural rules contained in the draft directive, which are still alien to Czech law, will lead to changes in national procedural legislation and will be used in proceedings where international overlaps can hardly be seen.
Below are some of the potentially most problematic provisions of the draft directive:
• Article 3: Definitions
Public participation: is defined very broadly, we suggest narrowing the definition.
Matter of public interest: is defined very broadly, we suggest narrowing the definition.
Abusive court proceedings against public participation: we propose a more precise definition of this concept, i.e. a change in the definition, because according to the current definition, whether and to what extent the characteristics of this concept have actually been fulfilled in the proceedings will depend purely on the assessment of a particular judge/judges, thus negating the objective of the proposed directive – harmonisation in the legal systems of the Member States.
• Article 7: Third party intervention
Article 7 provides that a court or tribunal seised in the matter may accept that non-governmental organisations safeguarding or promoting the rights of persons engaging in public participation may take part in proceedings, either in support of the defendant or to provide information. Member States should regulate the procedural requirements of intervention, possibly including time limits, in accordance with the procedural rules applicable to the court or tribunal seised of the matter.
According to the Czech legal system, the admission of an intervener to the proceedings requires that the intervener has a legal interest in the case, not merely a moral or generally pecuniary interest in the outcome of the dispute. Procedural law generally associates other procedural rights and obligations with the institute of intervention in civil litigation, thus it is an element that is alien to Czech law. We therefore propose a redrafting of the article in question.
• Article 9: Early dismissal
The first paragraph states that early dismissal is granted when the claim brought against the defendant is, in full or in part, manifestly unfounded. If the main claim is dismissed later on in the ordinary proceeding, the defendant may still benefit from other remedies against abusive court proceedings, if elements of abuse are then recognised. The second paragraph allows Member States to establish proportionate time limits for the exercise of the defendant’s right to file an application for early dismissal.
For the proposed provision – early dismissal – we are concerned about how courts will reach conclusions on the claims being manifestly unfounded in SLAPPs.
• Article 11: Accelerated procedure
Article 11 of the draft directive requires that an application for early dismissal is treated in an accelerated procedure, taking into account the circumstances of the case and the right to an effective remedy and the right to a fair trial. To ensure high expediency in the accelerated procedure, Member States may set time limits for the holding of hearings or for the court to take a decision. They may as well adopt schemes akin to procedures in relation to provisional measures.
In this respect, too, we share the position of the Ministry of Justice, namely that we cannot agree with the wording of Article 11 as we consider it to be an interference with national rules which, contrary to the principle of proportionality, goes beyond what is strictly necessary to achieve the stated objective of removing obstacles to civil proceedings.
• Article 12: Burden of proof
Article 12 of the draft directive introduces a rule of the reversal of the burden of proof: if a defendant has applied for early dismissal showing that the statement or activity constitutes an act of public participation, it shall be for the claimant to prove that the claim is not manifestly unfounded. This does not represent a limitation of access to justice, taking into account that the claimant carries the burden of proof in relation to that claim and only needs to meet the much lower threshold of showing that the claim is not manifestly unfounded in order to avoid an early dismissal.
We also view this proposal negatively, i.e. that the claimant will have to prove the absence of a certain fact at an early stage in the case of a request for dismissal of manifestly unfounded lawsuits. In the Commission’s view, the onus will be on the claimant in this case to show that the action is not manifestly unfounded on the merits (i.e. the claimant will have to prove, for example, that it did not do the act of which the defendant is accused in the newspaper article). However, in that respect, these are facts that the claimant would have had to prove in the original main proceedings, notwithstanding the defendant’s request for early dismissal of the manifestly unfounded proceedings. In that context, it is therefore not clear what purpose the institute of reversal of the burden of proof serves. Moreover, in practice, the claimant could end up being deprived of the possibility of judicial review of the merits of the case when the conditions of the proceedings are reviewed. Combined with the above-mentioned requirement for a stay of the main proceedings, we see in this provision a means by which the defendant can obstruct the proceedings, even in the case of a well-founded action.
• Article 14: Award of costs
The text of this Article stipulates that a claimant who has brought abusive court proceedings against public participation can be ordered to bear all the costs of the proceedings, including the full costs of legal representation incurred by the defendant, unless such costs are excessive.
In the case of lawyers, the amount of compensation for legal costs is determined according to the lawyer’s fee based on the so-called lawyer’s tariff. If costs were to be awarded on the basis of the agreed contractual lawyer’s fees, those costs would in most cases be disproportionately high from the point of view of the opposing party, and the directive presumably envisages that the reasonableness of the level of costs will be assessed in particular in the light of the claimant’s financial circumstances. According to the proposed text, this fact gives rise to an unequal position of the parties in the proceedings.
As we have already stated above, we fully support the efforts of the EP and the Council to promote democracy and strengthen the plurality of views, however, given our above-mentioned comments on the draft text of the directive, we are concerned that if the directive were to be approved as presented, it would be necessary to adopt amendments to the Rules of Civil Procedure, the Private International Law Act and the lawyer’s tariff, which would be very substantial interventions in the Czech legal order.