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27 Nov 2023

Michel Forst, UN Special Rapporteur on environmental defenders under the Aarhus Convention

UN Special Rapporteur on Environmental Defenders' recommendations on draft EU anti-SLAPP Directive

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"Michel Forst, UN Special Rapporteur on environmental defenders under the Aarhus Convention", 17 Nov 2023

...I have closely followed the ongoing negotiations of the draft Directive which carries an immense potential to protect and support...victims of Strategic Litigation against Public Participation (SLAPP) in the [EU]. As the member States are at a critical juncture in the negotiations...I would like to take this opportunity to highlight...five key points that...should be borne in mind in the finalization of the draft Directive.

1. Include explicit references to “environmental defenders” in the Directive

A significant number of the complaints received under my mandate as Special Rapporteur...to date relate to ongoing SLAPPs against environmental defenders. These SLAPPs impose a heavy burden...on environmental defenders, which the Directive must expressly acknowledge...

I call on the co-legislators to ensure that:

“Environmental defenders” are expressly listed as victims of SLAPPs;

It is made clear that environmental defenders are...human rights defenders and...entitled to the same rights and protections...

Matters relating to climate and environmental rights are included...when defining matters of public interest falling within the scope of the Directive...

2. Ensure broad substantive scope of the Directive

... I call for the deletion, in its entirety, of the Council’s proposed recital 4a concerning so-called “bad faith” public participation...[T]he notion of “bad faith” public participation...undermines the very essence of the Aarhus Convention and will...be misused

I urge the co-legislators to delete the “main purpose” requirement and the requirement for claims to be “fully or partially” unfounded in order to constitute abusive proceedings under article 3 (1)...[A]busive proceedings may involve partially founded claims and/or serve more than one purpose, yet still prevent, restrict or penalize public participation...

I strongly recommend the co-legislators to retain the inclusion of pending SLAPPs under article 21(1a) and the transposition period of one year under article 21(1)...I consider both of these measures to be essential to ensure that existing and future victims of SLAPPs have legislative protection as soon as possible.

3. Include a clear, broad definition of “cross-border implications”

...The requirement of a cross-border element...already severely limits the scope of the proposed Directive. A failure to define “cross-border implications”...will result in satellite litigation, fragmentation and the further narrowing of the Directive’s scope through an unduly restrictive interpretation by some member States...

4. Include a stand-alone provision on victim compensation and retain wide measures for victim support and assistance

Compensation for victims must be a cornerstone of protection under the proposed Directive...I therefore reiterate my strong support for the language of article 15 as proposed by the Parliament that requires the claimant to provide full compensation...to the victim...

5. Expressly address the role of legal professionals in enabling SLAPPs

...The conduct of lawyers in enabling SLAPPs adds significantly to the psychological harm suffered by SLAPP victims. Imposing clear ethical obligations on legal professionals...will help to prevent, or...reduce, such conduct.

... I remind member States that the proposed Directive will provide minimum requirements only...In no circumstances should the proposed Directive be used by member States to justify the reduction or removal of any existing protections against SLAPPs...