Silenced for Participation: A Comparative Analysis of Anti-SLAPP Regulations in the European Union and United States

Abstract

Background: The increasing use of legal strategies to impede public participation, i.e. Strategic Lawsuits Against Public Participation (SLAPP or SLAPPs), presents a growing concern within democratic legal frameworks. These lawsuits are generally initiated by more influential parties (authorities and corporations) aiming to suppress critical voices by overwhelming activists or journalists with the financial and emotional burden of litigation until they relinquish their critique.

Research purpose: This analysis delves into the recent legislative measures introduced by the European Union, encapsulated in the Directive adopted on April 11, 2024, which seeks to safeguard public engagement from baseless or vindictive legal actions.

Methods: This study employs a comparative methodology to dissect and compare the protective mechanisms against SLAPPs in the United States and the European Union.

Conclusions: Both regions have implemented procedures allowing for the early dismissal of such lawsuits, crucially shifting the evidentiary burden to the plaintiff to establish that the claims are not without merit. This transfer of burden is vital for protecting defendants from legal intimidation. Nevertheless, the EUʼs Directive, which mandates plaintiffs to demonstrate that their claims are not manifestly unfounded, falls short of offering full immunity against consecutive abusive legal actions from the same plaintiffs, revealing a gap in protection that could be addressed.

Through this comparative analysis, the paper contributes to the scholarly discourse on the effectiveness and sufficiency of anti-SLAPP measures. It argues that while the EU has made notable legislative progress, the protective scope remains incomplete, inviting further scholarly inquiry and legislative refinement to ensure more comprehensive protection against such abuses in litigation. By examining different legislative frameworks, this study not only highlights the current protective measures but also fosters a broader discussion on enhancing future legal responses to SLAPPs, which are crucial for preserving freedom of expression and supporting democratic engagement.