Strategic Lawsuits Against Public Participation (SLAPPs)

In the Directive (Article 4) the definition used is:

(1) ‘public participation’ means the making of any statement or the carrying out of any activity by a natural or legal person in the exercise of the right to freedom of expression and information, freedom of the arts and sciences, or freedom of assembly and association, and any preparatory, supporting or assisting action directly linked thereto, and which concerns a matter of public interest;

In the Model law section 1(4) the definition used is:

“public participation” means the making of any statement or the carrying out of any activity by a natural or legal person in the exercise of the right to freedom of expression and information, freedom of the arts and sciences, or freedom of assembly and association, and any preparatory, supporting or assisting action substantially linked thereto, and which concerns a matter of public interest;

In the Directive Article 4 the definition used is:

(2) ‘matter of public interest’ means any matter which affects the public to such an extent that the public may legitimately take an interest in it, in areas such as:

(a) fundamental rights, public health, safety, the environment or the climate;

(b) activities of a natural or legal person that is a public figure in the public or private sector;

(c) matters under consideration by a legislative, executive, or judicial body, or any other official proceedings;

(d) allegations of corruption, fraud, or of any other criminal offence, or of administrative offences in relation to such matters;

(e) activities aimed at protecting the values enshrined in Article 2 of the Treaty on European Union, including the protection of democratic processes against undue interference, in particular by fighting disinformation;

In the Model law section 1(4) the definition used is:

“matter of public interest” is to be understood broadly, with reference to the case law of the European Court of Human Rights, as referring to any matter which affects the public to such an extent that the public may legitimately take an interest in it;

In the Directive Article 4 the definition used is:

(3) ‘abusive court proceedings against public participation’ mean court proceedings which are not brought to genuinely assert or exercise a right, but have as their main purpose the prevention, restriction or penalisation of public participation, frequently exploiting an imbalance of power between the parties, and which pursue unfounded claims. Indications of such a purpose include for example:

(a) the disproportionate, excessive or unreasonable nature of the claim or part thereof, including the excessive dispute value;

(b) the existence of multiple proceedings initiated by the claimant or associated parties in relation to similar matters;

(c) intimidation, harassment or threats on the part of the claimant or the claimant’s representatives, before or during the proceedings, as well as similar conduct by the claimant in similar or concurrent cases;

(d) the use in bad faith of procedural tactics, such as delaying proceedings, fraudulent or abusive forum shopping or the discontinuation of cases at a later stage of the proceedings in bad faith.

In the Model law section 1(4) the definition used is:

an “abusive court proceeding against public participation” means, regardless of intent, a judicial application or pleading that is disproportionate, excessive, unreasonable, causes prejudice to another person, or defeats the ends of justice, particularly if it operates to restrict another person’s public participation on a matter of public interest;

The Directive provides that courts may dismiss early proceedings against public participation as “manifestly unfounded” (Article 11).  There is no such early dismissal mechanism for “abusive court proceedings”.  The Model law, on the other hand, does not make such a distinction, providing instead that any proceeding against public participation which is abusive may be dismissed early.