A. Introduction
The main goal of this Article is to explore how states can fulfill their obligation to protect freedom of expression, particularly in the context of Strategic Lawsuits Against Public Participation (SLAPPs) and examine whether this obligation can extend to the non-enforcement of judgments that negatively impact public debate. The Article aims to assess whether such non-enforcement is permissible within the EU’s mutual recognition regime, specifically under the “contrary to public policy” clause, while considering the legal dialogue between the European Court of Justice (ECJ) and the European Court of Human Rights (ECtHR).
The ECJ faced a landmark moment as it faced its first request for a preliminary ruling regarding proceedings initiated with could be considered a SLAPP—Strategic Lawsuit Against Public Participation.Footnote 1 The court of reference sought guidance on identifying judgments that may chill public debate and whether enforcement of such judgments should be refused, which the ECJ thoroughly addressed.Footnote 2 This case prompts a critical examination of the measures states must adopt to uphold open public discourse in an era where abusive legal tactics seem increasingly common.Footnote 3 The case also provides the foundation for the structure of this Article, which is as follows.
In the first section of this Article, I outline freedom of speech standards relevant for the case at hand as well as for similar cases. In this section, I also clarify the concept of SLAPPs and the chilling effect to highlight the importance of addressing them.
The second section of the Article begins with an overview of the recently adopted EU directive commonly referred to as the anti-SLAPP directive. I then draw attention to the positive obligation of states to protect freedom of expression, stemming from other acts adopted on the European level, as well as the jurisprudence of the ECtHR and the ECJ. I interpret that positive obligation in the present-day conditions and identify the procedural safeguards, the implementation of which can be derived from it. I also try to answer the question of whether it extends to non-enforcement of a judgment, enforcement of which could have a negative impact on the public debate.
In the third section, I analyze if the non-enforcement of a judgment on such grounds is permissible under the mutual recognition regime in the EU. In other words, I examine if a violation of freedom of expression falls within the scope of the contrary to public policy clause which can constitute the grounds for refusal of enforcement under the Brussels I regulation, recast. I frame this issue in the context of the dialogue between the ECJ and the ECtHR and I conclude by recapitulating both the opinion of AG Szpunar delivered in case C-633/22 and the judgment of the ECJ.
B. Real Madrid v. Le Monde Case
The main proceedings, marking the ECJ’s first opportunity to address the issue of SLAPPs, were initiated concerning an article published in Le Monde in 2006 titled Doping, first cycling, now football (French: Dopage: le football après le cyclisme).Footnote 4 The article was published both online and in print. It concerned the hiring of doctor Eufemiano Fuentes by a Spanish football club, Real Madrid. Fuentes was previously arrested in connection to a doping scandal that involved many professional cyclist, including some Tour de France favorites.Footnote 5
As a response to the publication, the football club, as well as a member of its medical team sued both the publisher of Le Monde, Société Éditrice du Monde, and the author of the article for defamation. The proceedings in Spain were won by the claimants and the defendants were ordered to pay jointly 390,000 to Real Madrid and 33,000 to the member of the medical team by way of the principal amount, interest and costs.
The Regional Court of Paris later issued two declarations of enforceability in relation to that judgment, which were then overturned by The Court of Appeal in Paris. The Court of Appeal in Paris held that the recognition of the judgment would be contrary to the French public policy. The awarded damages would have a deterrent effect on the defendants, discouraging them from participating in public debate. The plaintiffs in the principal proceedings brought an appeal in cassation. Before delivering a judgment, the French supreme court in civil matters, Cour de Cassation, referred seven questions to the ECJ on 28 September 2022.
The referring court essentially sought to determine whether Article 45(1) of the Brussels I Regulation,Footnote 6 in conjunction with Article 34(1), Article 45(2), and Article 11 of the Charter of the Fundamental Rights of the European Union,Footnote 7 should be understood as allowing a Member State, where recognitionFootnote 8 of a judgment from another Member State is sought, to refuse to enforce that judgment on the basis that it would result in a clear violation of the freedom of expression guaranteed under Article 11 of the Charter, in relation to a penalty imposed on a newspaper publishing house and a journalist for damaging the reputation of a sports club and a member of its medical team through a story published in that newspaper.
This case deserves attention for numerous reasons. First of all, the lawsuit that initiated the proceedings in Spain has some of the characteristics of SLAPP. The main aim of SLAPPs is to discourage legal opponents from taking part in the public debate. SLAPPs are not a new phenomenon but they are currently considered to be one of the biggest threats to the freedom of speech and public debate and seem to be increasingly common.Footnote 9 As a response to that threat, in April 2022, the European Commission proposed a Directive on protecting persons who engage in public participation from manifestly unfounded or abusive court proceedings, “Strategic lawsuits against public participation,”Footnote 10 adopted by the European Parliament in April 2024,Footnote 11 and presented similar Recommendations.Footnote 12 However, despite the opposition of non-governmental organizations, the provisions of the Directive were limited during the legislative procedure.Footnote 13 For this reason, the fact that the ECJ will emphasize the importance of protection from SLAPPs is all the more crucial.
The wider context of the case is also worth attention. The case deals with the freedom of expression of journalists who exercise the role of a public watchdog by scrutinizing the activities of government, public institutions, and business.Footnote 14 As the ECtHR repeatedly stated, not only does the press have the task of imparting such information and ideas; but the public also has a right to receive them.Footnote 15 However, due to many factors, illiberal tendencies and a growing number of SLAPPs being some of them, performing these functions by the press is increasingly difficult. Interestingly, only in the last three years, 2021–2023, Spain’s position in the World Press Freedom Index had fallen from 29 to 36. According to the reports without Borders, who comply the Index indicate that one of the reasons why Spain’s position changed is the issue of SLAPPs.Footnote 16
In this context, it is all the more important to counteract the chilling effect, or, as referred to by the referring court, the deterrent effect,Footnote 17 SLAPPs have. Legal action taken against a journalist, and their editor or publishing house, especially if exaggerated or unfounded can deter others from speaking out. This phenomenon has a negative impact not only on the freedom of expression of journalists and others playing the role of a public watchdog but also on the right for the public to be informed.
C. Standards on Freedom of Speech
I. Conflict Between the Freedom of Speech and the Right to Reputation
Cases such as the one in the main proceedings, where a journalist, and the editor or publishing house, are sued by the individual(s) to whom the press material pertained, represent a clash of two protected rights: Freedom of expression and the right to reputation. In ruling in favor of the claimant, the Spanish courts prioritized the latter right. The fundamental question is whether, in doing so, the courts complied with international human rights standards that outline how such conflicts between two rights should be resolved.
Freedom of expression is protected by the Article 11 of the Charter. According to this Article, everyone has the right to freedom of expression, which includes the right to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontier. Article 11(2) additionally guarantees respect for the freedom and pluralism of the media.
Freedom of expression is not an absolute right and can be subject to limitations consistent with Article 52(1) of the Charter. Any limitation must be provided for by law and respect the essence of those rights and freedoms. Limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others.
The ECJ doesn’t have extensive jurisprudence regarding freedom of speech, especially concerning the possible conflict with the protection of reputation. However, it’s possible to determine the scope of application of Article 11 of the Charter on the basis of the rulings of the ECtHR on Article 10 of the European Convention of Human Rights.Footnote 18 According to Article 52(3) of the Charter, in so far as the Charter contains rights that correspond to rights guaranteed by the Convention, the meaning and scope of those rights should be the same as those laid down by the Convention. In consequence, the Articles of the Charter must be given the same scope and meaning as the corresponding Articles of the Convention, as interpreted by the case law of the ECtHR.Footnote 19
When assessing whether there had been a violation of Article 10 of the Convention, the ECtHR applies a three-step test based on the second paragraph of said Article. In order for an interference, for example, a penalty imposed by the national court, to be permissible under Article 10(2) of the Convention it has to be prescribed by law, serve to advance the legitimate aim and it has to be necessary in the democratic society. In the case of Real Madrid v. Le Monde there is no doubt that the two first stages of the test were satisfied - the penalty imposed by the Spanish court was prescribed by law, and it served to advance a legitimate aim, the protection of reputation of both the football club and its medical team. However, determining whether the third stage of the test has been met requires a thorough evaluation.
The principles of assessing the necessity of interference in a democratic society were first established in the 1976 case Handyside v. United.Footnote 20 ECtHR summarized them in the most succinct way and completely in Stoll v. Switzerland issued in 2007.Footnote 21 A preliminary condition is to take all the circumstances of the case into account.
II. Journalistic Standards
Exercising the freedom of speech carries duties and responsibilities, especially for journalists. There is an extensive jurisprudence of the ECtHR on professional ethics and the due diligence expected in responsible journalism. Adherence to these standards is key to determining journalists’, and subsequently their editors’ and publishers,’ liability in defamation or reputational damage cases. A journalist fulfilling the duties and responsibilities, as established in the ECtHR case law, can be exonerated from liability even if the information he reported was not accurate.Footnote 22
To enjoy the protection guaranteed by Article 10, journalists have to act in good faith to provide accurate and reliable information in accordance with the ethics of journalism,Footnote 23 or “the tenets of responsible journalism.”Footnote 24 However, the courts cannot expect journalists to check the information beyond a reasonable extent. Moreover, they are free to report on stories or rumors emanating from other persons under the condition they are not completely without foundation.Footnote 25 The ECtHR also allows journalists to recourse to a degree of exaggeration, or even provocation.Footnote 26
Not being a journalistic standard per se, it’s also important to note, that according to the ECtHR’s consistent case law, broader limits of freedom of expression are permitted in relation to issues of public importance.Footnote 27 Public debate in this regard should be as unhindered as possible, and any interference requires a strong justification and is possible only in exceptional situations.
Whether a certain subject is a matter of public importance should be evaluated on a case-to-case basis. The term “matter of public importance” covers matters which are capable of giving rise to considerable controversy or which involve a problem that the public would have an interest in being informed about.Footnote 28 In the case of Colaço Mestre v. PortugalFootnote 29 the ECtHR dealt explicitly with the subject of football, the president of the Portugal league of football being at the same time head of a big football club, noting that there has been an intense debate on that subject at the time and the journalist could not be reproached for dealing with an issue that was of great concern to the public. The ECtHR also warned that a narrowly defined understanding of public interest could have a chilling effect.Footnote 30
D. Strategic Lawsuits Against Public Participation
The acronym SLAPP is commonly used to describe the phenomenon of initiating legal proceedings in response to a statement on a socially relevant topic, with the primary aim of discouraging the legal opponent from speaking out again. SLAPPs often involve allegations that are partially or entirely unfounded, and the initiator could be aware that the case is unlikely to be resolved in their favor. Additionally, the financial demands for damages tend to be disproportionate. However, being forced into participation in court proceedings, even if meritless, imposes financial and psychological burdens and diverts time and attention away from work. Thus, the primary purpose of SLAPPs is not to seek legal protection but to intimidate and silence the opponent by draining their resources.
Initiators of abusive proceedings also often trie to exploit an imbalance of power between the parties. Typically they have more financial resources for legal representation or more social or political influence. Another common feature of SLAPPs is the so-called “forum shopping” meaning inter alia bringing the proceedings before a jurisdiction that has the most favorable laws for the initiator of the proceedings. Sometimes the plaintiff decides to bring proceedings in more than one jurisdiction. The need to find representation familiar with another country’s—or countries’—legal system is not always simple and creates a big financial burden. Moreover, victims of SLAPPs often face multiple proceedings initiated against them or individuals or organizations affiliated with them in different jurisdictions. Lastly, SLAPPs are often accompanied by a public bullying campaign intended to humiliate the victim in public opinion and discredit his or her work.
SLAPPs can take different forms, such as defamation lawsuits or indictments, as well as less obvious ones like claims of breach of intellectual property rights or data protection.Footnote 31 SLAPPs will look different depending on the jurisdiction and for that reason they should be identified on a case-to-case basis, depending on the presence of distinctive features. The Committee of Ministers of the Council of Europe has outlined ten SLAPP indicators, five of which are mentioned above, in Recommendations on countering the use of strategic lawsuits against public participation (SLAPPs).Footnote 32 Of course, not every instance of SLAPP will have all of this characteristic.
The groups most frequently targeted by SLAPPs include those who serve as public watchdogs, such as journalists, including citizen journalists, bloggers, human rights advocates, NGOs, and even academics.Footnote 33
SLAPPs harm freedom of expression both on an individual as well as a collective basis. Firstly, taking legal action against those exercising their freedom of expression may discourage them from speaking out again on the subject. On top of that, it can have a chilling effect on other individuals as well, either because they belong to the same group—journalists, activists, etcetera—or deal with an identical or similar topic.
Secondly, because they silence journalists and other important contributors to the public debate, SLAPPs also have a negative impact on the level of public information. The European Commission noticed the threat to freedom of public debate posed by SLAPPs in Rule of Law Reports from 2020Footnote 34 and eventually, as already mentioned, in April 2024 a Directive addressing the issue of SLAPP was adopted by the European Parliament.
E. Chilling Effect
As already mentioned, the chilling effect,Footnote 35 occurs when a person, for example a journalist, refrains from exercising the freedom of speech because of fear of legal action being taken against them.Footnote 36 A person can auto censor because they have been sued for defamation or criminal proceedings have been initiated against them. However, as already pointed out, proceedings against someone else could deter others from speaking out, especially if that person belongs to the same professional group or spoke out on the same subject.
In the case of Monnat v. SwitzerlandFootnote 37 the ECtHR observed that even if the decision by the relevant authorities doesn’t prevent an individual from expressing himself, for example, because an article he wrote has already been published, the same decision could amount to form of censorship tending to discourage him from speaking out again in future. When assessing the possible chilling effect of a decision, one should anticipate the implications of future behavior outside the case under consideration.Footnote 38
As the European Commission observed in its Recommendations, in paragraph 12, the very possibility of being sued for defamation and the need to participate in the proceedings can have a chilling effect—even if the lawsuit is unfounded, and the defendant will probably win the case.Footnote 39 Such proceedings constitute both a financial and mental burden for the defendant. Moreover, because of the time and energy it consumes, it might be difficult or even impossible for the defendant to do his or her job.
However, the court may misapplies—or doesn’t apply at all—the standards protecting the freedom of speech. Striking the wrong balance between freedom of speech and, for example, the right to protection of reputation may result in the defendant being ordered to pay unjustifiably high damages, or even the entire case being wrongly decided in favor of the plaintiff. It is on the based of these types of cases, in which the judgment violates Article 10 of the Convention, that the ECtHR has built the greater part of its jurisprudence concerning the chilling effect.
To summarize, there are two main assumptions underlying the concept of chilling effect.Footnote 40 According to the first, the legal system is inherently imperfect and it’s impossible to accurately predict the outcome of every proceeding. The second assumption is that unjustified interference with the freedom of speech is more socially damaging than exceeding the limits of this freedom by the person who exercises it, for the reasons highlighted above. According to the Recommendation of Committee of Ministers on the protection of journalism and safety of journalists and other media actors, self-censorship caused by the chilling effect ultimately leads to the impoverishment of public debate, which is to the detriment of society as a whole.Footnote 41 And, as observed in a 1999 judgment issued by the House of Lords of the United Kingdom in the case Reynolds v. Times Newspapers Ltd,Footnote 42 unpredictability and uncertainty, coupled with the high costs of defending an action, affect a journalist’s decision and may “chill” the publication of true statements of fact as well as those which are untrue.
I. The Type of the Sanction
The extent of the chilling effect depends on, among others, the potential sanction. For that reason, criminal proceedings will have a greater potential chilling effect, especially in legal systems where the crime of defamation is punishable by imprisonment. However, civil proceedings can also be harmful to the public debate, in particular when a high compensation is sought.
In the Real Madrid v. Le Monde case the referring court is asking about the chilling effect of a financial penalty.Footnote 43 As a general rule, in the ECtHR judgments, the chilling effect of a penalty is conditional not so much on the amount of the penalty itself but on its proportionality.
It has to be noted, however, that the ECtHR’s reasoning regarding the chilling effect falls into a kind of circulus vitiosus: A penalty will be considered disproportionate if it’s of a nature to induce chilling effect and at the same time the fact that it could induce a chilling effect is due to its disproportionality. In the case Cumpǎnǎ and Mazǎre v. Romania,Footnote 44 the ECtHR points out that the chilling effect should be taken into account when assessing the proportionality, while in Dupuis and others,Footnote 45 for example the Court conversely seems to deduce the chilling effect from the fact that the sanction was disproportionate.
The proportionality of the penalty imposed is above all dependent on its amount. However, many different elements also have to be taken into account, like the economic situation of the person on which the penalty is imposed on, and the damage it can cause.Footnote 46 The ECtHR case law on that matter distinguishes between natural persons, for example journalists, and legal persons, for example press companies, as the latter generally have more assets at their disposal.
When it comes to natural persons, the ECtHR “puts the penalty into perspective,” for example by comparing its amount to the applicant’s monthly income,Footnote 47 the average income in a certain professional fieldFootnote 48 or by using as a reference amount the monthly minimum wage in given country.Footnote 49
For a penalty not to have a chilling effect on a legal person it cannot be so high that it threatens its economic foundations. Following that reasoning, in cases where it doesn’t have any harmful effect on the company’s business model, the ECtHR could judge the interference proportionate.Footnote 50 On the other end of the spectrum, there are cases in which the penalty, even if not very high in objective terms, had caused a newspaper or another news outlet to shut down. As the Court has put it, the penalty imposed discouraged the open discussion on matters of public concern by “silencing a dissenting voice altogether.”Footnote 51
The ECtHR also sometimes takes into account the amount of penalties typically imposed by the national courts in proceedings involving a similar matter.Footnote 52 However, it seems that this factor can only be treated as subsidiary. In a situation where the penalty is not higher from those typically imposed, but is high in relation to earnings, the ECtHR will still consider it disproportionate.Footnote 53
What is however crucial, the ECtHR also emphasized the possible chilling effect of a relatively light sanction, the so-called “one franc in symbolic compensation.”Footnote 54 Any unjustified interference with the freedom of expression can have a chilling effect that the relatively moderate nature of a said interference would not suffice to negate.Footnote 55
Of course, the amount of the penalty must be evaluated in relation to the aspects of the case, mainly the conduct of the person exercising the freedom of speech. In cases like the one at hand, adherence to the journalistic standards is decisive. Consequently, a light sanction will only constitute a violation if the behavior of the person enjoying protection under Article 10 of the Convention was beyond reproach.Footnote 56
It’s worth to mention that the ECtHR also considers other sanctions as potentially having a chilling effect on the freedom of expression: Deprivation of the right to exercise the profession of journalist,Footnote 57 order to identify anonymous sources,Footnote 58 a search.Footnote 59 The ECtHR generally sees imposition of a prison sentence for a non-violent speech crime as incompatible with Article 10 of the ConventionFootnote 60 but in the past also judged a suspended prison sentence as having a chilling effect by its very nature.Footnote 61
Lastly, it has to be noted that the mere fact of the occurrence of the chilling effect is something negative. If the ECtHR considers a penalty disproportionate, it will state that it’s “not of such a kind as to have a chilling effect”Footnote 62 —contrary to saying that the chilling effect it could cause is negligible.
II. The Reach of the Chilling Effect
The ECtHR jurisprudence covers at least three dimensions of the chilling effect a singular sanction could have—in relation to a particular individual, in relation to a newspaper, or a different media outlet, and in relation to the media landscape in general.
The reach of the chilling effect is dependent on many factors. Certainly, one of them is the proportionality of the imposed sanction. What may also matter is how many proceeding have been initiated in relation to a particular article, interview, etcetera. Taking legal action not only against the author but also against the editor and the publishing house, as well as taking legal simultaneously in more than one country will certainly increase the reach of the chilling effect.
The greater the reach of the chilling effect, the more damaging the impact on the public debate. This is not to say that cases in which one journalist is deterred from speaking out should be trivialized. Press representatives shouldn’t be ever held accountable for the diligent performance of their functions.
F. Summary—Part I
The preliminary condition when resolving a case involving a conflict of rights is that all circumstances of the case have to be taken into account. Proper application of the above mentioned standards—independently of the procedural safeguards described in the second section of this Article—can significantly reduce or even neutralize the negative effect abusive lawsuits have on the public debate.
What’s important in the context of the Real Madrid v. Le Monde case, these standards are applicable not only when ruling on a case. They are also crucial when determining whether a case has been decided with due respect of the freedom of expression. If a court is assessing if enforcement of a judgment will have a chilling effect it can see if these standards were taken into account in the sentencing. If the journalist was obliged, together with his publisher, to pay compensation for an article on a subject of social importance, written accurately and based on reliable sources, such judgment, as well as its enforcement would certainly have a chilling effect. It would be different if the article contained baseless accusations or false information the journalist could easily verify.
G. EU Regulations Concerning SLAPPS
In the next section of this Article, I will focus on whether current European regulations establish an obligation not to enforce a judgment similar to the Real Madrid v. Le Monde case. However, before delving into that, it is worth briefly evaluating the adequacy of the recently adopted anti-SLAPP directive by the European Parliament.
The directive relates to civil cases with a cross-border matter—this limitation being the consequence of the EU’s restricted competence in this area, provided in Article 81(2) of the TFEU. Thankfully, the definition of a case with cross-border implications, provided in Article 5, is quite broad. A case will be considered cross-border unless both parties reside in the same Member Country and all other elements relevant to the situation concerned are located only in that It leaves room for a broad interpretation: for example, an activist sued by a domestic company over actions related to factory-induced water contamination could be argued to have cross-border implications, as it pertains to a universal matter like environmental protection.
The directive compels Member States to introduce procedural measures that would allow them to deal with SLAPPs swiftly—shorter proceedings are less time—and money-consuming, and less psychologically burdensome for the victim. Early dismissal, found in Articles 11–13, limits the chilling effect SLAPPs have, not only on who they’re directed against but also on other individuals participating in the public debate. After the implementation, the courts should also have the possibility to require that the claimant provide security for the estimated costs of the proceedings and damages, as provided by Article 10. Other measures that are meant to dissuade individuals from initiating SLAPP-like proceedings include ordering the claimant to bear the costs of the proceedings—including the full costs of legal representation, as governed by Article 14—payment of compensation for the harm encountered by the defendant, and imposing proportionate and dissuasive penalties on the claimant as provided for in Article 15. The directive also offers protection in Articles 15–16 against third-country judgments.
Overall, the implementation of the directive and its concrete provisions should be assessed positively. The European Union noticed an issue and acted, even taking into account its limited competencies, boldly. However, there are several issues worth mentioning. First of all, not all SLAPPs have cross-border implications, even with the wide definition provided for in the directive. This leaves out a lot of cases involving journalists reporting on local issues.Footnote 63 The importance of subnational media should not be underrestimated, as it plays a crucial role in “upholding democracy at the local and regional levels and in fostering the communities they serve.”Footnote 64 SLAPP-like proceedings can be especially harmful for local journalists who typically have more limited financial resources they can devote to legal representation, not to mention that big news organizations have their legal teams. Additionally, local journalism is more vulnerable to modern threats facing traditional media, such as declining readership, disinformation, and the growing role of social media in spreading news.Footnote 65 In order to prevent its further decline and the emergence of local news deserts, the issue of “national” SLAPPs has to be addressed.
Secondly, as the European Commission rightly noticed in its Recommendation, paragraph 10, not only civil tools are used to stifle the public debate. SLAPPs can be criminal in nature—most Member State still criminalize defamation—or administrativeFootnote 66 . CASE, the Coalition Against SLAPPs in Europe, identified 17 different legal bases for SLAPPs after analyzing 570 different cases.Footnote 67
Implementing the directive while keeping its limited scope is inadequate to safeguard public debate from SLAPPs. It is up to Member States to, when implementing the directive, to extend it provisions to wider array of cases than just civil cases with cross-border implications. However, the process of implementation is not always timely or effective. In the absence of appropriate procedural provisions in criminal or administrative proceedings, courts need to apply alternative measures to protect SLAPP victims.
Last but not least, in order to use the provisions introduced by the directive, national courts first need to recognize a SLAPP. And this should be done by taking into account all the different standards introduced in the first section of this Article . Additionally, as I argue below, in some circumstances even non-enforcement of a judgement is not a viable remedy, if the issuing court mishandled a SLAPP case.
For these reasons, other regulations, as well as the case law of the ECJ and the ECtHR are still crucial for the protection of the public debate. The Real Madrid v Le Monde case is a perfect example—the directive provides for a possibility, or even an obligation, of non-enforcement of a third country judgement because of infringement of the freedom of expression but remains silent as to the judgment of other Member States. This is of course not surprising in any way as Member Sates function in a mutual recognition regime. In that regard, it’s necessary to look elsewhere for guidance—some remarks on that are included in the next section of the Article.
H. The Positive Obligation of States
The standards mentioned in the first section of this Article refer to the state’s duty not to interfere with the freedom of expression. However, fulfilling the obligation imposed by Article 1 of the ECtHR to secure everyone within their jurisdiction the rights and freedoms will sometimes require positive action.
About Article 10 of the ECtHR, according to the Council of Europe Recommendations as well as the jurisprudence of the ECtHR,Footnote 68 it means that ensuring the effective exercise of freedom of expression may require taking positive measures, also in the relations between individuals.Footnote 69 States are obliged to create a favorable environment for participation in public debate by all the persons concerned.Footnote 70 However, what exactly constitutes a “favorable environment”—and consequently what exactly are States’ obligations—especially given the ever-changing political, legal and social landscape is open to interpretation.
According to the living instrument doctrine the Convention is a living instrument and must be interpreted in the light of present-day conditions.Footnote 71 This means that what states have to do in order to secure the freedom of expression changes with time. Consequently, the positive obligations should be interpreted considering new threats to public debate, such as SLAPPs and the chilling effect they can cause.
The Committee of Ministers of the Council of Europe noticed the threat to the freedom of expression posed by the misuse of legal tools in the already mentioned Recommendation from 2016. As indicated in the Recommendation, the frivolous, vexatious, or malicious use of the law and legal process, with the high legal costs required to fight such law suits, can become a means of pressure and harassment, especially in the context of multiple lawsuits. In this context, the Committee of Ministers recalled the need to ensure that both sides have the opportunity to present their case effectively and to enjoy equality of arms. States are required to take appropriate measures, including the institution of a legal aid scheme, to ensure that each side is afforded a reasonable opportunity to present his or her case. These measures are crucial to offset the imbalance of powers often found in SLAPPs, where journalists or activists are being sued by extremely wealthy businesspeople or state-owned companies.
An even earlier Declaration concerns the problem of libel tourism which is interlinked with SLAPPs.Footnote 72 Libel tourism occurs when a person files a complaint with a court thought most likely to provide a favorable judgment. Moreover, to the detriment of the defendant, having to attend proceedings in a foreign country is not only stressful but generates additional costs, including legal representation and travel expenses.
However, it’s worth mentioning that since the adoption of said Recommendation legal harassment, including SLAPPs has become even more common. In 2017 a Maltese journalist, Daphne Caruana Galizia was murdered. At the time of her death, she was facing over 40 civil and criminal defamation suits.Footnote 73 Her case was her case was not an isolated one. This change in the media landscape should be taken into account when assessing what the positive obligations of the states include. It was not a coincidence that the Commissioner for Human Rights, Dunja Mijatović, mentioned the concept of positive obligations of the States in her comment Time to take action against SLAPPs. Footnote 74 According to the Commissioner, effective countering SLAPPs requires three elements: Preventing the filing of SLAPPs by allowing early dismissals, introducing measures to punish abuse, particularly by reversing the costs of proceedings, and minimising the consequences of SLAPPs by giving practical support to those who are sued.
Lastly, as already mentioned Council of Europe, adopted a Recommendation of the Committee of Ministers to Member States on countering the use of SLAPPs. The measures can be seen as a concretization of the Human Right Commissioner’s comment and are in substance similar to the directive. The Recommendation calls on Member States to adopt regulations allowing early dismissal of SLAPPs, claims against public participation, as well as to implement other procedural safeguards: The possibility for the courts to require security for procedural costs and impose dissuasive penalties on parties bringing SLAPPs and award procedural costs awarded against them, including the full costs of legal representation of the other party. According to the Recommendation, the victims of SLAPPs should also be able to claim compensation for both of the material and immaterial damages caused by the proceedings.
In light of deteriorating conditions for a public debate, among others the growing popularity of SLAPPs, the positive obligation of the states to create a favorable environment for the participation in the public debate should be understood as extending to enact legislation introducing measures like the one recommended in the Recommendation. Of course, such a requirement is more difficult to meet than the mere obligation to refrain from unjustified interference with said freedom as “law is far more effective in defending negative freedom than conferring positive liberty; it can restrain the state but rarely compel it.”Footnote 75
In this context, against the background of the Real Madrid v. Le Monde case question arises whether the positive obligation extends to non-recognition of a judgment violating freedom of expression.Footnote 76 As already indicated, the mere need to take part in the proceedings can deter someone from speaking out in the future, but the chilling effect depends primarily on the order to pay compensation and its proportionality. Non-enforcement limits or even completely neutralizes chilling effect in this aspect, which also has been noted by the Committee of Ministers of the Council of Europe: According to paragraph 13 of the Recommendation, Member States should also provide effective protection against third-state judgments, bearing in mind, as relevant, emerging European and international standards in this respect. The anti-SLAPP Directive also provides for the possibility of refusing to execute a judgment which would harm the public debate. According to Article 16, courts should refuse recognition of a judgment if those proceedings would have been considered manifestly unfounded or abusive if they had been brought before the courts or tribunals of the Member State where recognition is sought. However, this provision only concerns third-country judgments issued on account of public participation by natural or legal persons domiciled in the EU.
It then seems that the answer is yes: If recognition of a judgment issued with disregard for the international standards concerning freedom of expression would create a chilling effect, the states should refuse such recognition to fulfill their obligation to create a favorable environment for everyone to participate in the public debate.
I. Non-enforcement in the Light of EU Regulations
This however leads to another question: If such a non-enforcement is possible between Member States of the EU where mutual recognition is a rule.
According to the Brussels I regulation, recognition of a judgment given in another Member State can be denied, if such recognition is manifestly contrary to public policy (ordre public) in the Member State addressed. However, under Article 52 of said regulation, under no circumstances may a judgment given in a Member State be reviewed as to its substance in the Member State addressed, prohibition of révision au fond. Both ECtHR and ECJ explained how this prohibition relates to examining whether human rights are protected.
According to the Bosphorus presumption established by the ECtHR,Footnote 77 State action taken to fulfill an obligation arising from membership in an international organization and leaving no discretion to the State, such as recognition of judgments under the Brussels I regulation, will be considered compatible with the Convention. That’s because as already indicated, human rights are presumed to be equally protected by EU law as by the ECtHR system. However, this presumption can be rebutted if, “in the circumstances of a particular case, it is considered that the protection of Convention rights was manifestly deficient.”Footnote 78
In a later judgment in the Avotiņš v. Latvia case,Footnote 79 the ECtHR directly addressed the principle of mutual recognition of judgments and presented a slightly more nuanced view than in the Bosphorus case. That is, if a serious and substantiated complaint that the protection of a Convention right has been manifestly deficient and that this situation cannot be remedied by the EU law is raised during the enforcement proceedings, the court cannot refrain from examining that complaint on the sole ground that they are applying EU law. This means that in specific cases—when a party is claiming a serious violation of a convention right—the principle is not to presume the equal level of protection, but precisely to examine whether this protection has been provided.
ECJ originally held a completely different position. Its interpretation of the prohibition of révison au fond was much narrower and didn’t provide an exception for human rights. According to its opinion on the draft agreement providing for the accession of the EU to the Convention, the requirement to check if another State has observed fundamental rights despite the rule of mutual trust is “liable to upset the underlying balance of the EU and undermine the autonomy of EU law.”Footnote 80
In its later jurisprudence the ECJ, took a different approach, allowing in some cases for an individual assessment of human rights protection against the rule of mutual trust.Footnote 81 This reasoning could be applied mutandis mutatis to cases concerning enforcement of a judgment; it concerns cases where the breach of human rights could take place in the future, which can only be determined with a certain degree of probability.Footnote 82 Assessing if such a breach had already taken place is comparatively simpler and more objective. In cases similar to Real Madrid v. Le Monde it would mainly consist of checking if adequate standards have been observed when issuing the judgment.
As the ECJ explained in its jurisprudence, recourse to the ordre public clause is permissible only if recognition of the judgment were to constitute a manifest infringement of a rule of law regarded as essential in the legal order of the State in which recognition is sought or of a right recognised as being fundamental within that legal order.Footnote 83
Again, it seems that the answer is yes, enforcement of a judgment can be denied on the ground of violation of the freedom of expression, as it certainly constitutes a fundamental right in all Member States of the EU. At the very end should be added that the criterion of a manifest infringement has to be assessed on a case to case basis. As already indicated, an inadequate handling of a SLAPP case can amount to such an infringement.
This raises the question of whether an enforcing court has the competence to verify whether the issuing court adhered to freedom of speech standards, given the prohibition against reviewing the substance of the case. However, this issue can be framed differently. One could argue that the court where enforcement is sought is not revisiting the merits of the original judgment but is instead looking ahead, attempting to foresee whether enforcing the judgment will have a chilling effect on public debate. In that context, the concern about staying outside the scope of revision au fond becomes irrelevant. This is also the line of reasoning adopted in the ECJ judgement, as explained in the next part.
Lastly, it has to be noted that this issue is of great importance in the context of the reopened negotiations on EU’s accession to the ECtHR. According to Article 5b of the Consolidated version of the draft Accession InstrumentsFootnote 84 , the Accession of the European Union to the Convention shall not affect the application of the principle of mutual trust within the European Union.Footnote 85 In this context, the protection of human rights guaranteed by the Convention shall be ensured. The explanatory report refers explicitly to the Avotins v. Latvia judgment stating that “with regard to the mutual-recognition mechanisms under EU law, the Court also held that it must verify that the principle of mutual trust is not applied automatically and mechanically to the detriment of human rights.”Footnote 86 The Real Madrid v. Le Monde case presented a valuable opportunity for the ECJ to align its jurisprudence with that of the ECtHR, particularly in light of the planned accession. The ECJ took advantage of this opportunity to some extent, as I explain below.
J. ECJ’s Judgment
The ECJ delivered its judgement on 2 October 2024. In the judgment, the ECJ largely adhered to the opinion of AG Szpunar.Footnote 87 The opinion underscores the delicate balance between mutual trust in the EU’s judicial cooperation framework and the need to safeguard fundamental rights, particularly freedom of expression. It emphasizes that while the Brussels I Regulation promotes mutual recognition of judgments across Member States, it cannot come at the expense of core democratic values. AG Szpunar argued that if enforcing a judgment would have a chilling effect on public debate, it may be justified to invoke the public policy exception under Article 45(1) of the Regulation.Footnote 88
Building on Szpunar’s analysis, the ECJ concluded that a Member State court may refuse enforcement only if it would result in a manifest breach of a rule of law or a right—such as a Charter right—recognized as fundamental within that legal order, in paragraphs 29–44. Interestingly, the ECJ also allowed for a partial non-enforcement—as regards only one of the applicants or one of the defendants referred to in those judgments, as provided for in paragraph 72.
As to the remarks about the mutual recognition regime presented above, the ECJ remained strict regarding the exceptions. Significantly, Opinion 2/13 is referenced to emphasize that courts may not verify whether the other Member State has upheld fundamental rights in a specific case, except in rare situations.Footnote 89 What I believe is missing are guidelines on the types of situations where a national court should verify this. The ECtHR is more explicit in this regard, pointing to cases where a party claims a serious violation of a Convention right.
As to Article 11 of the Charter, the ECJ, extensively referencing its previous judgments, reinforced its significance as “one of the essential foundations of a pluralist, democratic society, and one of the values on which, under Article 2 TEU, the European Union is founded,, while pointing to ECtHR case law as the minimum standard for its protection.Footnote 90
The ECJ also provided guidance as to how to asses if enforcement of a judgement would result in a manifest breach of Article 11 of the Charter. The court of the country where the enforcement is sought should establish, if the damages awarded are of the nature to cause a deterrent effect of the coverage of similar matters or even on the exercise of the freedom of the press This requires assessing the proportionality of the judgment by considering various factors, such as the amount awarded in similar cases, the resources of the individuals against whom the judgment is issued, their conduct—including the fulfillment of journalistic obligations and responsibilities—and the extent of the harm caused. However, regarding the latter two elements, the court cannot substitute its assessment for the findings made by the court that issued the judgment.
This essentially means that if a court in a Member State imposes a financial penalty proportionate to the poor conduct of the journalists being sued, but the conduct was misjudged by the issuing court, refusing enforcement is not a viable remedy. That is another argument for promoting ECtHR standards regarding freedom of speech in the judiciary. Although the ECtHR primarily serves as persuasive authority in this context, adhering to its judgments could help prevent the mishandling of SLAPP cases.
Overall, the most important step taken by the ECJ in relation to the protection of the public debate is a shift from permission to obligation. By the first question, the referring court in essence sought to establish whether a manifest breach of freedom of expression can constitute a ground for refusing to recognize and enforce a judgment. The ECJ takes it a step further, stating that enforcement in such circumstances must be refused.
The judgment might seem like a missed opportunity to explicitly address the phenomenon of SLAPPs. However, if the ECJ has indicated that the referring court cannot delve into the details of proceedings in another Member State due to the prohibition of révision au fond, it is equally difficult to expect the ECJ to evaluate whether the lawsuit initiating the proceedings constituted a SLAPP. The ECJ’s role remains limited to interpreting and applying EU law, without assessing the national court’s handling of the facts or merits. The judgment is nevertheless crucial in relation to SLAPP cases, as it allows for non-enforcement
Overall, it’s difficult to overestimate the significance of this judgment. It represents not only a crucial step in protecting SLAPP victims and safeguarding public debate but also in upholding fundamental rights more broadly. The ECJ demonstrated flexibility and an ability to adapt to contemporary challenges.
K. Concluding Remarks
In conclusion, regardless of the implementation of the Anti-SLAPP Directive—whose importance should not be underestimated—it is imperative that courts within EU Member States apply the freedom of expression standards established by the ECtHR when adjudicating cases. This approach is essential to safeguarding a free and open public debate, which forms the cornerstone of democratic societies.
In this context, the ECJ judgment in the Real Madrid v. Le Monde case presented a crucial opportunity to reinforce these principles at the EU level. Thankfully, the ECJ seized this moment to issue clear guidelines for Member State courts on when non-enforcement is required to maintain open and unhindered public debate.
It is a different question whether this will be the case. It’s almost a truism to say that the ECtHR’s and the ECJ play different roles. The ECtHR role is to hold states responsible for human rights violations and remedy these violations by remedy these violations by requiring states to adopt individual measures or general measures, such as amending or adopting adequate regulation. The ECJ, conversly, was meant to ensure uniform application of EU law for further integration of the EU, which was primarily established as an economic union. The protection of human rights in European Union was not an end in itself but is rather aimed facilitating the flow of capital and goods between Member States. Dean Spielmann calls the pro-integratione approach to human rights.
Nevertheless, this approach is changing. The EU increasingly acts as a union of values, including human rights.Footnote 91 As Gráinne de Búrca and Claire Kilpatrick rightly point out, the international human rights protection system requires not only accountability of duty-bearers to rights-holders, but also of duty-bearers to one another, the approach is also known as horizontal Solange.Footnote 92 By making a broader exception for the protection of human rights at the detriment of the principle of mutual trust, the ECJ strengthened the mutual monitoring of human rights observance between Member States.Footnote 93 The landmark judgment also seems fundamental from the perspective of the EU’s accession to the ECtHR.
Acknowledgements
The author would like to thank Przemysław Pałka for his continuous support, as well as all the participants of the Work in Progress seminar at Jagiellonian Univeristy in February 2023 for their thoughtful and insightful comments.
Competing Interests
The author declares none.
Funding Statement
There is no specific funding associated with this Article.
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