Brussels: A directive that spent years described as a shield for journalists is now supposed to be national law, and the gap between that promise and what capitals have actually delivered has rarely looked wider. The deadline to transpose the EU’s Anti-SLAPP Directive fell earlier this month, and a familiar pattern has set in. A handful of governments wrote the new protections cleanly into their codes. Most asked, in effect, for more time they were never granted.
SLAPPs, strategic lawsuits against public participation, are the abusive cousins of ordinary litigation. A property developer, a politician or a well-resourced company files a defamation claim not because it expects to win, but because the cost and stress of defending it will exhaust a reporter, a small newsroom or a campaigning NGO into silence. The directive’s answer is procedural rather than rhetorical. Courts gain an early-dismissal mechanism to throw out manifestly unfounded claims before they grind on for years. Claimants who bring abusive suits can be ordered to cover the defendant’s full costs and, in some transpositions, penalties on top. Judgments handed down in third countries against Europe-based defendants can be refused recognition.
The trouble is that a directive only protects people once it exists in the law a national judge actually applies. Cross-border cases, the directive’s formal scope, are the rarer kind. The lawsuits that do the most chilling are usually domestic, brought under home-country libel rules, and those sit outside the EU text unless a member state chooses to extend the same safeguards inward. Press-freedom groups have spent the transposition window arguing that anything less than that fuller approach leaves the directive looking impressive on paper and thin in practice.
Several capitals have taken the narrow road, copying the minimum that the directive requires and declining to apply early dismissal to purely domestic disputes. Others have not legislated at all, leaving courts to reach for the directive’s wording directly, an uncertain footing that helps nobody facing a writ next week. The Commission can open infringement proceedings against the laggards, and it has signalled it will, but that process moves in years while the lawsuits it is meant to deter are filed in days.
There is also the awkward question of what the directive cannot reach. The most aggressive operators have already adapted, swapping defamation claims for data-protection complaints, copyright threats or criminal insult provisions that still exist in much of the bloc. A shield built for one type of suit invites attackers to pick a different weapon. That is why the campaigners who pushed hardest for the directive now talk less about the text itself and more about decriminalising insult, harmonising the patchwork of national libel standards and funding the legal defence of people who cannot match a corporate litigant’s budget.
None of that diminishes what the directive achieves. For the first time the bloc has a common name for an abuse that thrived on having none, and a common minimum for fighting it. The measure of the next year will not be how many governments eventually notify Brussels that they have transposed. It will be whether a freelance reporter in a mid-sized town, served with a claim designed to bankrupt rather than to win, can walk into a courtroom and have it dismissed before it does its damage. That is the test the directive set itself, and the clock on it has already started.
