EU legislation for the protection of journalists and activists. Data collection is a duty of states. Italy is one of the worst.

The final days of negotiations on the first EU law against abusive and defamatory lawsuits (so-called SLAPPs) are crucial. However, no one is talking about it. The document was designed to protect the public participation of journalists, activists, and human rights defenders. But member states are trying to weaken the document proposed by the European Commission, and negotiations are currently underway between institutions, including Parliament, in search of a compromise. There is hope that the outcome will not alter the original intent.

Therefore, members of civil society who are part of the anti-SLAPP coalition (CASE) are reaching out to the ministers of justice in individual countries. However, they are not showing openness. First and foremost, there is a lack of awareness of this phenomenon. "Countries, despite the commission's recommendations, haven't even started collecting data," says Osservatorio Balcani Caucaso researcher and CASE member Sielke Kelner. And without data, any intervention is difficult. Currently, independent platforms like Mapping Media Freedom or CASE itself are gathering information on the legal threats faced by journalists and activists. But more is needed.

The directive was presented as an initiative in honor of the murdered journalist Daphne Caruana Galizia, but as her son stated last July, "if it remains as it is, it will never protect her," and "this is a serious disservice to her colleagues across Europe." That’s why, according to Kellner, "we are excited, but we need to try to influence the process while we still have room to maneuver." This and how to create a European support network will be discussed inRome on Monday, October 16, at the first CASE Italia event "For a Transnational Network Against SLAPP: Against Restrictions on Public Participation."

In July, you wrote to Minister Nordio asking for help. Did you receive a response? No, nothing. Now we have requested a meeting. We are at a crucial moment in the negotiations.

Is it possible to reach an acceptable compromise for you? We hope so. The text from the Commission and then the proposal from Parliament are solid, but the proposal from the EU Council, which reflects the will of the member states, has narrowed its scope and weakened it. It all depends on how the negotiations go. Is everything in the hands of the states? They are the ones resisting. I hope we still have room to maneuver, but we are anxious. Because if the member states continue to resist, someone will have to give in.

There was supposed to be a law on press freedom in honor of Daphne Caruana Galizia. Will the outcome meet expectations? Everyone is interested in presenting the result and calling it a success, regardless of whether it protects journalists and activists. This means that if an ineffective directive is passed, one that cannot protect the objectives of unlawful actions, then no one will revisit this issue in the near future. Therefore, it is important to take advantage of the remaining room for maneuver and try to influence the process.

What are you asking for? Procedural guarantees are required. The first is the ability for a judge to recognize obviously unfounded or exaggerated cases as inadmissible: states have narrowed this down only to cases with "such an indisputably unfounded claim" without "reasonable doubt." This limits its application. What happened to the possibility of obtaining compensation for damages for those subjected to wrongful claims? It has disappeared in the text proposed by the member states. This would be a strong deterrent: anyone who abuses the institution of defamation would think twice or even three times before filing a lawsuit if there is confidence that they would have to pay compensation for damages in the case of process abuse.

What could be the consequences of the directive for the laws of individual states? We are hoping for a domino effect. The Commission's proposal only regulates civil proceedings with a cross-border nature. Let's assume the text is adopted in this wording. If we are in a courtroom in Italy discussing a case with a cross-border nature, and the judge provides more guarantees than in a case that is purely domestic, this creates a contradiction. We hope that a strong directive will lead to the development of case law.

Why is this important not just for journalists?

It protects not only journalists, right? For example, it also concerns informants. I'm thinking of Francesco Zambon, a former WHO employee, who was demanded to pay 2.5 million euros by the WHO's deputy director after his accusations regarding the management of the pandemic. Or environmental activists, like Recommon, a non-governmental organization that was sued for its campaign against Eni regarding climate change.

Is the number of wrongful lawsuits increasing over time? It's hard to say, as the data is not collected systematically. Why don't governments do this? We're talking about a concept that only began to be conceptualized in the late 1980s in the United States. In Europe, awareness only came in 2017 with the death of Daphne Caruana Galizia. When the Maltese journalist was killed, she had 46 open cases. These were wrongful lawsuits, many of which were filed by politicians in the Maltese government, and one by the Prime Minister. Daphne Caruana Galizia died without access to her bank accounts, which were frozen by the minister who sued her. The work of her family became crucial for proposing European legislation.

And in Italy? In Italy, there is a tradition of politicians frequently filing lawsuits. This is a characteristic that brings us closer to some countries in Central and Eastern Europe, such as Serbia and Poland. We have many politicians who use unlawful actions to silence their critics. This contradicts the entire judicial practice of the Strasbourg Court, which states that if you are a public figure, you must endure a higher level of criticism. This is related both to your profession and to the fact that if you want to respond, you have all the microphones to do so.

Will we ever have a law against frivolous lawsuits? Currently, five bills are being discussed in the Senate Judiciary Committee. Their impact is very limited. Theoretically, they respond to the Constitutional Court's invitation to Parliament to develop a comprehensive reform of the defamation institution. They intervene to exclude criminal penalties, but is that enough?

The Constitutional Court has already declared criminal punishment for defamation unconstitutional, except in cases of extreme severity. Some aspects of the proposed laws raise serious concerns because they increase penalties. One of the bills even suggests a punishment directly related to a temporary ban on journalistic activities. It almost seems that the goal is to protect the plaintiff more than the defendant, implying some malice on the part of the journalist.

Are we among the worst in this regard? In terms of quality, we are among the worst. Many high-ranking politicians engage in improper actions or threaten to do so, and that is very concerning.

How many cases in Europe have prime ministers filed lawsuits against journalists? As we know, this happened in Malta and Italy. The Maltese prime minister was Joseph Muscat, who filed a defamation lawsuit against Daphne Caruana Galizia, which brings us closer to the worst case in the EU. Therefore, Mapping Media Freedom and CASE are monitoring the processes involving the current Italian prime minister: in addition to the issues concerning Roberto Saviano, a lawsuit was filed against Domani last November. While a sister filed a lawsuit against Natangelo, the cartoonist from Fatto quotidiano. Before discussing Meloni's cases, limiting ourselves to examples involving high state officials, it is worth noting the lawsuits by De Mita against D'Alema (1988), D'Alema against Forattini (1999), and Berlusconi against D'Avanzo (2009). After states included the possibility of surveillance on journalists in the European Media Freedom Act, there is now a risk that the directive on abusive lawsuits will also be diluted.

How do you perceive these acts? A political intention.