The Anti-SLAPP Directive and the risk of incomplete protection
In November 2021, the European Parliament called on the Commission to propose a package of measures to counter the growing number of strategic lawsuits aimed at stifling public participation (so-called SLAPP, Strategic Litigation Against Public Participation). More specifically, these are legal actions—civil, criminal, or administrative—brought against anyone who has made a statement or engaged in an activity in the exercise of freedom of expression and information, such as journalists and human rights defenders, with the aim of hindering their reporting and limiting their ability to cover issues of public interest.
These actions often appear superficial and devoid of substance, based on disproportionate and, more often than not, abusive claims aimed at intimidating, professionally discrediting, and harassing the targets, with the goal of silencing them. Precisely for this reason, they are also called “gag lawsuits”—practices that risk undermining the foundations of the democratic system and the common good.
In the digital context, which facilitates the publication and dissemination of content exponentially, SLAPPs have become a tool to discourage the circulation of unwelcome material. Therefore, these actions no longer concern exclusively defamation in the press but increasingly take the form of lawsuits for online defamation, violation of personality rights and personal data protection regulations, as well as for alleged violations of fair competition rules.
In Italy, the situation is particularly alarming, as 2024 recorded the highest number of SLAPPs on the continent for the second consecutive year, with 21 out of a total of 167 cases in Europe—as reported in the annual report by CASE (Coalition Against SLAPPs in Europe) and the Daphne Caruana Galizia Foundation. It should also be noted that these figures represent only those SLAPP cases that ultimately result in actual legal proceedings, without taking into account that the majority of SLAPPs are resolved at the pre-litigation stage.
Further exacerbating the situation is the fact that this phenomenon is characterized by a marked imbalance of power (including financial power) between those initiating legal action and the targets, as the majority of these actions are brought by politicians, prominent public figures, and large industrial groups.
Directive (EU) 2024/1069, being an instrument of minimum harmonization, introduces a core set of national procedural safeguards for civil and commercial disputes that qualify as “SLAPPs,” with two important limitations: on the one hand, the Directive applies exclusively to cross-border disputes (i.e., those initiated in a national jurisdiction other than the one where the parties reside (Art. 5)); on the other hand, the Directive applies exclusively to SLAPP actions brought in civil courts, excluding those brought in criminal or administrative courts (Art. 2).
SLAPPs are defined in Article 4 of the Directive as “abusive legal proceedings aimed at stifling public participation”: that is, “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.” Article 4 also provides certain indicators of the “abusive” nature of actions brought against public participation (such as, for example, the disproportionate or unreasonable nature of the claim, the existence of multiple proceedings initiated by the same plaintiff regarding similar issues, and so on).
Subject to the aforementioned limitations, the safeguards introduced by the Directive aim to counter those litigation tactics often adopted by plaintiffs acting in bad faith, such as filing claims that are—even partially—unfounded, seeking excessive damages, withdrawing the case at an advanced stage of the proceedings, or incurring disproportionate procedural costs for the defendant.
In particular, the safeguards introduced in Article 6 of the Directive can be categorized into three main protective measures:
- The requirement for the claimant to post a security deposit to cover the estimated costs of the proceedings, which may include the defendant’s legal representation costs and, where provided for by national law, costs related to any damages;
- The defendant’s ability to request the early dismissal of manifestly unfounded claims, following an appropriate review, aimed at blocking public participation, with the burden of proof regarding the merits of the claim placed on the plaintiff;
- Provisions for remedies to prevent abusive legal proceedings. These include:
- The possibility of requiring the plaintiff to bear the costs of the proceedings, including the full amount of the defendant’s legal representation costs, unless such amount is excessive;
- The power of the courts to impose effective, proportionate, and dissuasive sanctions on the plaintiff or to order other appropriate measures of equal effectiveness, such as compensation for damages or the publication of the decision if provided for by national law.
The aforementioned measures would have been particularly useful in a recent case involving the Wikimedia Foundation in a dispute that could be classified as a SLAPP suit because it sought to censor information of public interest concerning César do Paço, a businessman and former honorary consul of Portugal. The Foundation, in fact, faced a lawsuit filed by do Paço, who challenged the legitimacy of the Wikipedia page dedicated to him, as it contained information about his political affiliations and criminal record—topics relevant to current Portuguese politics.
The case was brought before the competent court in Portugal, which ruled in favor of the Foundation in the first instance. However, the decision was subsequently overturned on appeal, based on grounds that had not even been raised by the parties. To date, Portuguese judges have ordered the Wikimedia Foundation to remove the information regarding do Paço and to disclose the personal data of the authors who contributed to the drafting of those articles.
In this regard, such censorship, which targets current, relevant, and public-interest information, may pose a threat to the Foundation’s editorial independence.
Once all legal remedies available under Portuguese law have been exhausted, the Wikimedia Foundation has declared its intention to bring the case before the European Court of Human Rights (ECtHR).
The case thus takes on significance that extends beyond the individual dispute, as a potential ruling by the ECtHR could help ensure greater protection against overly broad and deterrent SLAPP lawsuits within the EU.
A ruling that penalizes users and volunteers worldwide simply for summarizing and publishing on Wikipedia information already disseminated by accredited media outlets—including SIC, CMTV, and Sábado magazine—regarding a public figure would risk having a chilling effect on freedom of expression and information. Furthermore, the idea that every single volunteer editor must thoroughly verify all previous contributions and sources for an entry before making an edit would be particularly concerning.
However, the limited scope of application of the procedural remedies imposed by the directive entails a significant risk: transposition restricted to the minimum scope of European legislation could leave SLAPPs initiated in criminal and administrative contexts, as well as purely domestic disputes, unprotected. These restrictions on the scope of the Directive are explained by the principle of conferral, under which the European Union is competent only in matters for which competence is conferred upon it by the Member States. In this regard, Article 81 of the TFEU, as the legal basis for the Anti-SLAPP Directive, permits the harmonization of Member States’ legislation in the judicial sphere only “in civil matters with cross-border implications.” Therefore, provisions for substantive and procedural remedies to curb SLAPPs in criminal or administrative contexts, as well as for purely domestic cases, may be adopted solely by the Member State.
In this regard, the Directive also refers to Recommendation (EU) 2022/758, which, in points 4 and 5 of the applicable frameworks, emphasize the importance of introducing procedural safeguards that allow for the dismissal of SLAPPs even in domestic and criminal disputes.
Therefore, to ensure comprehensive and effective protection of freedom of expression and of the press, Member States must take action that goes beyond the minimum implementation of the provisions set forth in the Anti-SLAPP Directive.
In order to trigger an adequate transposition of the safeguards provided for by European legislation, the national group CASE Italia sent an open letter to Minister Nordio and Deputy Minister Sisto reiterating “the importance of introducing effective and comprehensive protections against such instrumental practices into our legal system.”
Indeed, although this is a particularly important issue, Italy, along with 18 other Member States, has needlessly allowed the May 7, 2026, deadline for transposing the directive to pass. Furthermore, the text of the enabling law (Law No. 36/2026, European Enabling Act 2025), approved by the Italian Parliament, raises concerns because it is based on a transposition reduced to the bare essentials of the Directive, thus excluding purely domestic SLAPPs, as well as those brought in criminal and administrative proceedings.
Such a limited regulatory intervention would be inadequate to provide concrete and effective protection to journalists, activists, and anyone reporting on matters of public interest.
Such an outcome would not resolve the structural problem of SLAPPs in Italy. On the contrary, it would perpetuate a context in which the abusive use of the judicial system would continue to have a chilling effect on public debate, freedom of expression, and freedom of the press.
Full and effective implementation is therefore essential to ensure independent, fact-based journalism that helps protect the pillars of democracy by combating injustice, holding leaders accountable for their actions, and enabling citizens to make informed decisions.
