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Dáil Éireann díospóireacht -
Wednesday, 6 Jul 2022

Vol. 1025 No. 1

European Parliament and Council Directive on Protecting Persons who engage in Public Participation: Motion

I move:

That Dáil Éireann approves the exercise by the State of the option or discretion under Protocol No. 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, to take part in the adoption and application of the following proposed measure:

Proposal for a Directive of the European Parliament and of the Council on protecting persons who engage in public participation from manifestly unfounded or abusive court proceedings ("Strategic lawsuits against public participation"),

a copy of which was laid before Dáil Éireann on 30th May, 2022.

On behalf of the Minister for Justice, Deputy McEntee, I thank the Ceann Comhairle for facilitating this motion. Deputies will be aware that the prior approval of the Oireachtas is required under Article 29.4.7° of the Constitution if Ireland wishes to take part in an EU measure whose legal base falls under Part 3, Title 5 of the Treaty on the Functioning of the European Union, TFEU. The proposed measure before the House today has its legal base under Title 5 and, therefore, it requires such approval. The proposal is for an EU directive on minimum common standards in member states to protect individuals and bodies, particularly journalists and human rights defenders, against the type of manifestly unfounded or abusive court proceedings commonly known as strategic lawsuits against public participation, SLAPP.

The proposal, which was first presented by the European Commission on 27 April 2022, forms part of a number of initiatives by the European Commission to reinforce the application of the Charter of Fundamental Rights of the European Union and to strengthen protection for democracy and the rule of law at EU level. It responds to increasing concerns expressed by the Council of Europe, the European Parliament, the European Commission and NGOs across Europe concerned with press freedom and the protection of human rights about the rising threats to democracy and human rights, particularly in physical and legal threats to media freedom and the safety of journalists. A particular concern has been the SLAPP actions. The proposal defines "SLAPP" as manifestly unfounded or abusive court proceedings brought against those engaging in public participation on matters of public interest in order to deter them from such participation. The objective is less to reach a determination of the main proceedings than to threaten, exhaust and silence the defendant by using procedural strategies such as artificially inflating legal costs, maximising delays, threatening the defendant with exorbitant penalties, making unfounded accusations or issuing multiple proceedings in different jurisdictions.

The proposal explains that the characteristic purpose of SLAPP proceedings is not to seek access to justice, but rather to close down the freedom of expression and the information that is essential in a democracy. SLAPP actions are therefore seen as not only a threat to the defendant but also an abuse of court time and resources and a potential threat to democracy, fundamental rights and the public interest. Obviously, the proposed directive will have to strike a careful balance between the right to freedom of expression and information in the public interest and the rights of access to justice and to an effective remedy. It is important to underline that, under the proposal, whether a particular set of proceedings amounts to SLAPP would remain a decision for the national court. The purpose of the proposed directive is rather to ensure that every member state provides a minimum common toolbox of procedural safeguards to their judges and tribunals in order to protect defendants across the EU against such actions and to prevent these abusive actions from developing and proliferating.

I will outline the main minimum procedural safeguards that are proposed. First is the provision for SLAPP defendants to seek early dismissal of proceedings as manifestly unfounded. In that application the burden of proof falls on the SLAPP plaintiff to show that the action is not manifestly unfounded. If the defendant seeks early dismissal, the main proceedings must be stayed until a final decision is made on the early dismissal application, which must be treated as an accelerated procedure.

Second is the provision for an SLAPP defendant to seek a court order that the SLAPP plaintiff provides advance security for the defendant's costs, for example, that the plaintiff lodges money in the court if the court considers that appropriate due to elements indicating abusive proceedings.

Third is the provision that the court may accept third party intervention in the SLAPP proceedings by specialised NGOs on behalf of the defendants. The role of the NGO may be either to provide support to the defendant or to provide relevant information to the court.

Fourth, if the court or tribunal concludes that the proceedings are abusive, it must have power to impose effective, proportionate and dissuasive penalties on the SLAPP plaintiff and to order that the plaintiff bear the full costs of the proceedings. These should include the full costs of legal representation incurred by the SLAPP defendant unless such costs are excessive.

Any SLAPP defendant who has suffered harm as a result of the proceedings must be able to claim and obtain full compensation for that harm.

It is proposed that the courts and tribunals in any member state would also have the power to refuse to recognise or enforce the judgment of a non-EU state, if it arises in proceedings which, under the law of the member state, would have been considered a SLAPP. Member states are also required to ensure that if an abusive action is brought in a non-EU country against a defendant domiciled in a member state, that defendant may seek compensation in his or her member state of domicile for damages and costs incurred in the third-country proceedings, irrespective of the SLAPP plaintiff's country of domicile.

Many of these procedural safeguards are already, to a greater or lesser extent, available in our own legal system. It is important to note that the proposed directive is limited to matters of a civil or commercial nature. It does not cover any criminal proceedings. In addition, the proposed directive to apply the proceedings in accordance with the treaty legal base must have cross-border implications. Under the proposal, these are taken to exist where either or both of the parties are not domiciled in the same member state as the court seized of the proceedings; the act of public participation against which the court proceedings have been taken is relevant to more than one member state; or the plaintiff or connected entities have initiated concurrent or previous proceedings against the same or associated defendants in another member state.

It is useful to mention how some of the key terms are defined in the proposed directive. "Public participation" is defined as any statement or activity expressed or carried out in the exercise of the right to freedom of expression or information on a matter of public interest, along with preparatory supporting or assisting activities. A "matter of public interest" is defined as any matter which affects the public to such an extent that it may legitimately take an interest in it in areas such as public health, safety, the environment, climate, or the enjoyment of fundamental rights; activities of a person or entity in the public eye or of public interest; allegations of corruption, fraud or criminality; activities aiming to fight disinformation; and matters under public consideration or review by a legislative, executive or judicial body, or any other public official proceedings. "Manifestly unfounded" proceedings are not defined by the proposal. The Commission considers this a term recognised in member states' legal systems and can be interpreted and applied by national judges at their discretion. "Abusive proceedings" in this context are defined as proceedings that are fully or partially unfounded and have as their purpose to prevent, restrict or penalise public participation. According to the proposal, such proceedings typically involve litigation tactics used in bad faith, such as delaying proceedings, causing disproportionate costs to the defendant in the proceedings, or forum shopping, which are often combined with threats, intimidation or harassment.

I should of course mention that in Ireland the issue of SLAPPs has already been considered in the report of the review of the Defamation Act 2009, which the Government approved for publication on 1 March 2022. The report noted that while the term SLAPPs is not explicitly used in submissions to the public consultation on reform of the Defamation Act 2009, a number of submissions from journalists, representative bodies and the print and broadcast media raised fears and concerns that echo those typical of SLAPP cases. The key recommendations of the defamation report include a recommendation to introduce a new anti-SLAPP mechanism to allow a person to apply to the court for summary dismissal of the proceedings that he or she believes are a SLAPP. The Minister for Justice has indicated she is preparing and amending the defamation Bill to give effect to the recommendations of the report. Deputies will recall the defamation report was discussed in the House on 11 May and this recommendation was widely supported. However, the proposal in the directive applies both more widely and more narrowly in referring only to proceedings that have cross-border implications.

This is clearly an important proposal. Subject to the approval of both Houses, it appears desirable for Ireland to opt into the proposal at this stage, before its adoption, in order to ensure we can participate fully in the council's deliberations and the final text of the directive takes full account of our legal systems. We therefore recommend the motion to the House and ask Deputies to support it.

I thank the Minister of State. Sinn Féin will support the motion. The issue the motion relates to and the directive itself are enormously important in having an EU-wide set of minimum standards for protecting individuals, journalists, human rights advocates and, more particularly, residents' associations, and environmental and non-governmental organisations, which is vital.

Given the limitation or weakness of the EU directive, namely, that it applies primarily to transboundary or cross-border strategic litigations, I would be more impressed if the Government was to bring forward domestic legislation to tackle the issue of strategic litigations against public participation, which is a growing problem in this country. While the Commission, in its explanatory memorandum to the proposal to the directive, focuses on journalists and human rights defenders, in this State today the central problem is in fact large developers instigating very expensive strategic litigations against public participation against groups with very limited resources to try to, in essence, destroy the good work such groups are trying to do in the courts. I will evidence some of that. While we support the motion, I urge the Minister of State to take back to his colleagues the need for domestic legislation to deal with domestic strategic litigation because that is where the problem is. I am sure I will not be the only Deputy who will raise that.

I will give a couple of examples by way of cases that have already been widely reported in the media. It is important to put them on the Dáil record. In Dublin city centre, a large apartment development, Ivy Exchange, was built during the Celtic tiger with very significant fire safety and structural defects. The apartment owners' management company is trying to avail of the only redress it currently has, which is taking the developer, Cosgrave's, through the courts to remediate the building that would cost the homeowners tens of thousands of euro otherwise. Cosgrave's has initiated a strategic litigation-----

I ask the Deputy not to use names.

I will make no apology for this. It is in the public domain, it has been reported in the newspapers and it is a matter before the courts. These are precisely the kind of cases - I will not name any individuals - where company names have been reported in the public domain. I want to repeat them in the Chamber. I will not go beyond anything that is in the public domain, if that is okay.

Cosgrave's has initiated a strategic litigation against the owners' management company, OMC. It is trying to bankrupt that OMC and deny it the very legitimate right to pursue the developer it believes is responsible for the defects in the courts. In February this year, the Irish Independent reported on how a developer was threatening a Tidy Towns group with legal action. Ardstone Homes was reported as the litigant against Ballyboden Tidy Towns group. In May this year, The Irish Times also reported proceedings taken by the Marlet Property Group against residents in Killiney, County Dublin, again, to deny them access to the courts. A very reputable legal practice, FP Logue solicitors, which many Members will know, is being subject to legal proceedings by Marlet and threats of legal proceedings by Ardstone among others. I thank the Acting Chairman for his latitude. The reason it is important to name these cases in the House is these are examples of the strategic litigation against public participation that is happening right now in our State. As far as I understand it, there is nothing in the EU directive that will prevent such strategic litigations continuing into the future.

There is also a broader issue here. Under the Aarhus Convention, people have a right to access information, especially about the environment and public health, as well as a right to access to the courts. We are currently having a debate in the Joint Committee on Housing, Local Government and Heritage and the Attorney General is looking at the matter of planning reform. The issue of judicial reviews of planning decisions is back in the newspapers. The important thing about judicial reviews is the issue is not whether one supports the grounds upon which somebody takes a judicial review. It is whether people have a right to access justice under the terms of the Aarhus Convention.

It is absolutely the case that judicial reviews take far too long. If we had a dedicated planning and environment court that was adequately staffed with professionals at the back end, we could dispense with them much more quickly. Government is actively considering a set of proposals that were contained in the general scheme of a heads of Bill last year to greatly restrict the grounds upon which citizens or groups, including environmental NGOs, would be able to seek access to justice. It would make no sense, in my view, to sign up to an EU directive that is meant to have a set of common standards to prevent strategic litigation against public participation at the same time as the Government is trying to reduce the grounds upon which people access public participation through the planning process or the courts. That is not an argument against reforming the system. It takes far too long both for public and private developments. The best way to reform the system is not to make it more expensive for people to seek access to justice or to narrow the grounds for taking such cases, but rather to reform the planning and courts system to do it more expediently.

There is also another problem, which was seen most recently in the Kilkenny case involving Glanbia. It is not a planning application that I know anything about. I am not going to comment on the application or consider the merits of it on one side or another. One of the statutory consultees to that planning process, An Taisce, which is a body that is named in legislation as a statutory consultee, was subject to the most appalling public bullying by Government Ministers, Government Deputies and, indeed, some opposition Deputies. I am not saying that what An Taisce was doing is right or wrong. However, under our law, it has a right as a statutory consultee to engage in the planning process and the arising judicial proceedings after that. It seems to me that on the one hand, Government is telling us that it would like to protect citizens and organisations from strategic litigation, yet the very same Government is quite happy to apply very public and inappropriate pressure on statutory consultees, such as An Taisce, that are simply doing their job. It is absolutely the case that the legal appeals that An Taisce took delayed the process enormously. There is an easier way to deal with that, using the mechanisms I outlined earlier. I know that the Government supports those mechanisms, but it has yet to enact a dedicated planning and environmental court and tighter statutory timelines on decisions by An Bord Pleanála. In fact, in this issue in general very recently, the director for implementation, governance and semester in the Directorate-General for the Environment of the European Commission had some very critical things to say about the Government's poor record in ensuring that citizens and environmental organisations have adequate access to information and justice in our planning process. In some public commentary, Mr. Aurel Ciobanu-Dordea pointed out that in fact this jurisdiction "continues to be the most expensive member state in which to make an environmental claim before the courts". He went on to say that this "has left many environmental litigants unable to predict with any certainty the costs exposure" involved. The reason that I am raising the point is that if we are going to ensure that people, citizens, journalists, human rights defenders, residents' organisations, Tidy Towns groups or environmental NGOs, have full access to public participation in our planning system and in other issues of public interest, then we have to do it across the board. We cannot just support a sensible, albeit very modest, proposal from the European Commission for transboundary minimum standards against strategic litigation against public participation. We must enshrine it in domestic law and in the reforms to our planning system, and ensure that politicians of all parties on both sides of this House, even when they disagree, respect the right of citizens, organisations and statutory consultees to engage in the planning process.

I know this is not the Minister of State's primary area of responsibility. I suspect that other Members may share the following request. I ask that the Minister of State brings these wider concerns directly related to the subject under discussion to the line Minister and for her to correspond with the spokespeople from the various parties on whether or not she has any plans to deal with these wider issues. It would make no sense to sign up to an EU directive and for Government to say that it is not going to enact comparable domestic legislation to deal with strategic litigation against public participation in this jurisdiction. I urge the Government to do so. If it does that, it will certainly have the active support of our party, subject to the detail of any legislative proposals brought forward.

I have five minutes to speak. It took me longer than five minutes to read the directive. It is a point that I make almost every day now as we go through directives that are important for the lives of people, when we only have a few minutes to participate in the debate. The matter at hand is an important issue because it concerns the functioning of our democracy. I suggest that if we asked people in the street what a strategic lawsuit against public participation, SLAPP, was, the vast majority would have no idea. Certainly, if we used the acronym SLAPP, they would have less of an idea what we are talking about. In fact, it is a hard thing to define. At its core, it is a notion that a powerful individual, company or entity seeks to silence its weaker critics by launching litigation that has no merit, but whose purpose is to cow, bully, intimidate and silence.

Obviously, there are a number of issues that arise. One is the problem that it cannot be determined that a lawsuit has no merit until the case is actually heard in some preliminary form. Obviously, powerful interests are entitled to use the courts, as is every other citizen, company and entity. We need to find solutions for that. My first question is whether this is the solution, or whether should we be dealing with it in our own domestic law. It is quite clear that we should be dealing with it in our own domestic law. I would go into it in more detail if I had more time, but bluntly, the actual vires of the Commission in advocating for this particular directive is on thin enough ground. It has multinational requirements because it is anchored in Article 81 of the Treaty of the Functioning of the EU, TFEU. For that article to apply, there must be a cross-border dimension. Article 81(1) states: "The Union shall develop judicial cooperation in civil matters having cross-border implications, based on the principle of mutual recognition of judgments and of decisions in extrajudicial cases." In particular, Article 81(2)(f) of the treaty states that the European Parliament and the Council may adopt measures aimed at ensuring "the elimination of obstacles to the proper functioning of civil proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable in the Member States". If I had more time, I would go into the detail of why I think the underpinning of the directive is thin enough legal grounds. However, it is part of a package of measures that I strongly support from the Commissioner for Justice, Mr. Didier Reynders. He is working on a package of measures aimed at tackling abusive litigation. I am afraid that too often, we see abusive litigation and the intimidation of people who voice their opinions on a range of matters. I must say that it has also been used by politicians to silence journalists by taking pre-emptive legal action. That was mentioned by the Minister of State in his contribution in relation to the report of the review of the Defamation Act 2009. Although the report does not use the term SLAPP directly, a number of submissions were made by journalist representative bodies from the print and broadcast media raising concerns that echoed those raised in relation to the intimidation of voices of criticism.

In essence, I strongly believe in and have no difficulty in supporting this directive, limited and all as it is. However, we really need to enact domestic legislation on the matter. That is my main message to the Minister of State today. Formulating co-operation and joined-up thinking on issues like this at an EU level is important, but if we look at the different legal structures of the member states, they are very different. Some have non-existent protection and others provide for vague enough protection. We must deal with the matter fundamentally in our own domestic legislation first. Let us prove best practice so that we can ensure access to the law, which is the right of every citizen and entity under our Constitution and is a welcome and good thing, is not used as a form of abuse to silence or intimidate voices of criticism.

Those with deep pockets can go to the courts, access expensive lawyers and they can prevail, despite the merits of their arguments, over weaker citizens or groups of citizens in our State.

The purpose of this directive would be to provide protection to individuals and organisations, particularly journalists, whistleblowers, watchdogs and human rights activists, against so-called SLAPP lawsuits. SLAPPs can be described quite simply as privatised censorship. The vast majority of SLAPPs are pursued by wealthy and powerful litigants with the sole purpose to intimidate and silence their critics. They are an abuse of the legal system, an insult to the concept of free speech and freedom of expression and a danger to our democracy. They lack legal merit and once they are presented in court, the vast majority are dismissed. That is not the issue at hand because the damage inflicted by SLAPPs happens a long time before they ever reach the courts. These lawsuits are characterised by lengthy and expensive litigation, crafted solely to drain an individual’s finances, isolate and intimidate them and ultimately silence them. It does that, I have seen it happen and I endorse the points that have been made on developers. I could not believe it the first time I heard of that being used.

I mentioned individuals because in recent years the majority of these lawsuits were directed at individual journalists or activists rather than the organisations they worked for. This is a tactic to isolate them from the automatic legal and financial support they would otherwise be entitled to and to expose them personally to the costs of the cases. The cost of a single court case would bankrupt many small media outlets or human rights organisations and even the larger organisations can only withstand so many. That is before you start talking about the impact it would have on an individual. The financial and legal vulnerabilities of the media sector are well-known and they are exploited in order to suppress stories.

According to research conducted by the Foreign Policy Centre, 73% of investigative journalists in Europe received legal communications as a result of information they had published. Most of these, 71%, had come from corporations or other business entities. We know the courts are favoured by wealthy people and we have seen them used for that purpose in this jurisdiction as well. The defences proposed by the European Commission were dubbed Daphne’s law after the Maltese anti-corruption journalist Daphne Caruana Galizia, who was assassinated by a car bomb on 16 October 2017. At the time of her death she was facing more than 40 lawsuits. In advance of her brutal murder she talked about the impact the cases had on her and how they scared other people off from doing what she was doing. This is not just an issue abroad; these lawsuits are incredibly common in Ireland and are especially damaging to journalists and to human rights groups and activists. We are seeing community-based individuals who have a legitimate reason to be concerned, including in the sector of development. Not all developments are good ones and there are developments that must be opposed. Shutting that opposition down does not improve the built environment or our environment. It is obvious that this is happening.

I was contacted this week by a woman who is facing a SLAPP as a result of her human rights activism in Ireland. Before this case was taken against her she did not know what a SLAPP was. She had never spoken to a solicitor in her life outside of getting a mortgage and then suddenly she was sitting in front of a solicitor who was telling her she might need to sell her house in order to afford the case being taken against her by a powerful public person in this State. She said:

The whole process is deeply shaming, terrifying and very, very isolating…the aim is to exhaust you emotionally and it is powerfully effective. I've already had to get two loans from the credit union just to be told I'll be brought to the high court.

That is happening now to an individual in this country.

This directive would provide for common procedural safeguards in EU member states to protect against these lawsuits. The safeguards would include the early dismissal of proceedings, which the Minister of State has already gone into in his opening comments. This is welcome but, as has been said, it only applies to cases that have a cross-border element. We need to replicate these measures in domestic legislation and we need to do so urgently to protect people in this State from legal harassment by powerful individuals and corporations.

The Watson Killiney Residents Association in my area had a SLAPP taken against it because it sought a judicial review against a decision by An Bord Pleanála to grant permission for a strategic housing development by Atlas GP Ltd., a developer owned by Pat Crean of Marlet Property Group. This information is in the public domain and has been widely reported. That case has been taken against eight members of the residents association in a precise attempt to intimidate them against their legal right to take a judicial review against a strategic housing development on the grounds that it breached a county development plan, did not have a proper environmental impact assessment, EIA, and screening and so on. These eight individuals include a woman who is 92 years of age and they had agreed to an initial development of 108 apartments. However, they took umbrage when a strategic housing development then jacked that up to 255 apartments, which is a legitimate concern.

That is what these SLAPPs are about. They are widespread across the world and we see them in Ireland where big corporations and wealthy individuals use the money and resources they have at their disposal to try to intimidate communities, environmentalists, human rights activists and journalists from asking questions or challenging their interests. They have to be stopped so we support this directive but, as has been said, it only concerns cross-border issues so it does not help the residents in that situation or in some of the other examples that Deputy Ó Broin gave earlier. Therefore, we need domestic legislation, particularly when we have a Government that often gives out about communities, environmentalists or residents challenging planning decisions. We need domestic legislation to secure the rights of public participation for our citizens.

A SLAPP is a groundless or exaggerated lawsuit or other form of legal intimidation initiated by state organs, businesses and corporations, and individuals with power and money etc. against weaker parties, including journalists, civil society organisations, human rights defenders and others that transmit messages that are uncomfortable to those with the power and money. The aim of the SLAPP is not to win the case but to use the procedure to intimidate, tire out and consume the financial and psychological resources of those who have spoken out. They aim to achieve a chilling effect and silence those who would speak out similarly.

The number of SLAPPs across Europe is increasing year on year and it is relatively well-known how they are being used to target newspapers and journalists. I would like to highlight how they are being used to target activists, people who regularly are without great resources, if any, at their disposal, for whom a legal threat can be a scary experience. In this country for example, a SLAPP has been used by a conservative anti-abortion campaigner against a person who campaigns for safe zones outside hospitals where abortions are carried out. Activists within one of the most vulnerable and marginalised communities in our society, our transgender community, have been in touch with my office to register with me the sharp increase in the number of SLAPPs being used against activists in their community who make legitimate comment on issues of pressing concern to that community.

As we are debating a justice issue, I want to take a brief moment to raise a serious matter which highlights the need for sentencing guidelines for certain sensitive cases. The case I raise is the disturbing case of the jailing of a Waterford teenager following the death of her newborn baby.

I am referring to sentencing guidelines in a general sense.

I do not see that being in the scope of this debate at all.

I ask that the Minister of State communicate this point to the Minister for Justice.

I gave a bit of leeway to other Members in relation to the matter. That is fine. The Deputy can table a parliamentary question on the matter.

In that case, I will set aside my other comments and conclude by saying we need compassion and professional help in cases like this. Jail should not be the punishment for young women who give birth in secret and in shock. I call on the Minister to review sentencing guidelines and to call for this woman's release.

As we have no other Members present, I ask the Minister of State for his response.

I thank all Deputies who have contributed and those who have indicated they intend to support the motion. I will make some specific points and, in doing so, I will underline the importance of the proposal and our opting in to it at this stage. The Government has decided that, subject to the approval of the Dáil and Seanad, Ireland should opt in to the proposal at this stage to ensure we can participate in the discussions on the proposals and that the final text of the directive is shaped to accommodate our common law system as much as possible. There is also a strong reputational aspect to be considered for opting in to this proposal at this stage.

The proposal forms a significant element of the European Commission's European democracy action plan. It also complements other Commission initiatives, for example, the strategy on strengthening the application of the Charter of Fundamental Rights of the European Union and the rule of law reports. Democracy, the rule of law and fundamental rights are the foundations upon which the European Union is based. A cornerstone of a healthy and thriving democracy is a guarantee that people can participate actively in public debate without undue interference. For meaningful participation, people must have access to reliable information and be able to form their own judgment on the basis of that information. It is therefore vital to protect journalists and others engaged in public participation on matters of public interest from manifestly unfounded or abusive court proceedings. It is desirable to demonstrate our support for these important principles by opting in to the proposal at the earliest possible stage.

The proposed directive refers in particular to the right to participate in democratic life contained in Article 10 of the Treaty on European Union, the right to freedom of information and expression contained in Article 11 of the Charter of Fundamental Rights of the European Union, the corresponding right to freedom of expression under Article 10 of the European Convention on Human Rights, the right to respect for private and family life under Article 7 and to protection of personal data under Article 8 of the EU Charter of Fundamental Rights and the right to an effective remedy and a fair trial under Article 47 of the Charter of Fundamental Rights of the European Union.

Respect for fundamental rights, including the right of access to justice, will be at the heart of the debate on the proposed directive and its interpretation by the European Court of Justice and national courts. The purpose of the proposal is to protect against unfounded or abusive court proceedings. It is not to prevent or impede access to justice or to prevent a person from protecting his or her good name or reputation, rights protected by our Constitution. The proposal therefore includes procedural safeguards, for example, a case can only be dismissed in full or part at an early stage if the judge considers it is manifestly unfounded; any decision in relation to an early dismissal must be subject to appeal; where a defendant applies for the early dismissal of a case, the main proceedings are stayed until such time as the final decision is made on the application to have the case dismissed; and if an early dismissal application is not granted, the plaintiff can continue with his or her action.

Furthermore, the safeguards put forward by the proposed directive seek to address specific identified features of SLAPP suits taken by certain parties against journalists and human rights defenders. These include the deliberate issue of proceedings known to be without merit and maximising of delays and ancillary court applications in order to impose highly exaggerated legal costs; ongoing stress and time burdens; the issue of multiple or duplicate proceedings in a single jurisdiction; the issue of proceedings in multiple jurisdictions, often ones to which the parties and the dispute have no real connection; the waste of court time and resources and drag on court systems due to artificially delayed and duplicate proceedings which have no legal merit; often a significant imbalance of power and financial resources, which pressurises the target of the SLAPP action to withdraw from public participation on the issue in dispute, even where the action appears unfounded; and the subsequent weakening of investigative journalism and defence of human rights, together with public participation more widely. The proposed directive is therefore an important response. There is merit in Ireland opting in at this juncture in order to ensure we can participate in shaping it.

In reply to remarks by Deputy Ó Broin, the European Commission has noted publicly that Ireland is among the first four EU members to commit themselves to introducing anti-SLAPP legislation domestically, as the Government has now done in relation to the reform of defamation laws.

Deputy Howlin is correct in noting that the directive refers to matters with a cross-border dimension and, for reasons of its legal competence, the Commissioner who is responsible for the directive has publicly acknowledged this.

Question put and agreed to.
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