1. Introduction
It seems that the primary role of a journalist is to gather and present information that is in line with reality. This is true, but the functions that a journalist, or journalism more generally, performs in modern and democratic states are much broader and more significant. One such function is that of reporting to the public. It is mainly thanks to the work of journalists (radio, television, newspaper or Internet) that modern society learns new facts. The presentation of these facts is often accompanied by an element of evaluation, which is not necessarily direct, but also indirect, if only through the modes of speech or gestures adopted. There is also no denying that the reporting function often transcends traditional national borders and has a cognitive significance globally or across borders. All of this means that a journalist can be seen as having a strong influence on how socially certain facts may be perceived. This is because, as noted, a journalist not only gathers and presents information, but also often evaluates it or suggests a direction for evaluation as positive or negative. This makes the journalist a potentially powerful tool that can be used to present new facts with an evaluation or suggestion of evaluation in line with some specific value system.
2. What happened? Presentation of the new EU initiative
The European Union seems to have recognized the peculiarities of today's journalism outlined above. Most likely, it is for this reason that Directive (EU) 2024/1069 of the European Parliament and of the Council of 11 April 2024 on protecting persons who engage in public participation from manifestly unfounded claims or abusive court proceedings (‘Strategic lawsuits against public participation’) (OJ L, 2024/1069, 16.4. 2024, ELI: http://data.europa.eu/eli/dir/2024/1069/oj) (hereinafter: the Anti-SLAPP Directive) was adopted, the purpose of which is, as its Article 1 states, to provide safeguards against manifestly unfounded claims or unfair civil litigation with cross-border effects brought against individuals and legal entities because of their involvement in public participation. The adoption of the anti-SLAPP directive was preceded by the European Parliament legislative resolution of 27 February 2024 on the 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”) (COM(2022)0177 - C9-0161/2022 - 2022/0117(COD)). All this also coincided with the adoption of yet another document, namely the European Parliament resolution of 17 January 2024 on the transparency and accountability of non-governmental organisations funded from the EU budget (2023/2122(INI)) (hereinafter: NGO Financial Resolution). It is hard to believe in coincidence here, so these documents should be read together.
The NGO Financial Resolution contains many interesting passages. First, it calls on the European Commission (hereafter: EC) to ensure that only organizations that strictly adhere to all EU values will be funded from EU funds (point J and points 1 and 2). Second, the EC was urged to establish ex ante mechanisms to clearly identify NGOs. that are pushing an agenda that undermines EU values. Third, the European Parliament (hereinafter: EP) recalled that in countries with authoritarian or undemocratic systems, NGOs are often the last line of defense for democracy (point 5). Fourth, the EP insists that NGOs, in the face of threats, attacks, slander, and excessive state controls, must be protected and receive adequate funding and support (point 8). Fifth, the EP believes that special provisions should apply to NGOs operating in full compliance with EU values and financial principles and the Charter of Fundamental Rights of the European Union in environments where democracy is under threat (point 9). Sixth, the EP believes that in duly justified cases, particularly those involving NGOs operating in countries where authoritarian regimes are in power or where there are recognized rule of law problems negatively affecting NGOs and civic space is limited, if public dissemination of information about the identity or work of these NGOs could lead to repression that threatens their existence and the safety of their staff, public transparency requirements should appropriately be applied exceptionally (point 11). NGO Financial Resolution does not clarify what is meant by phrases such as “democracy”, “EU values” or the now-famous “rule of law.” It seems, as one might reasonably assume, to be about understanding these terms as the EU understands them.
The Anti-SLAPP Directive is a bit of a different story. Mainly because it's an EU directive, and therefore a legal act binding on the Member States of the European Union (hereafter: EUMS). The Anti-SLAPP Directive was adopted under Article 81(2), point (f) of the Treaty on the Functioning of the European Union (hereafter: TFEU). This piece of legislation provides numerous safeguards in the event of litigation against individuals or legal entities due to their involvement in public debate (Article 6), such as the provision of financial security by the plaintiff, the dismissal at an early stage of an obviously baseless claim, or the application of deterrent penalties or other equally effective measures against the plaintiff (Article 15). The Anti-SLAPP Directive is intended to apply to civil or commercial cases with cross-border implications that are the subject of civil proceedings. According to Article 5(1), a matter is considered to have cross-border implications unless both parties are domiciled in the same EUMS as the court seized and all other elements relevant to the situation concerned are located only in that EUMS. This means that a cross-border effect can also occur if the plaintiff and defendant are domiciled in the same EUMS, but the other (any) element relevant to the case will be located in a different EUMS. It seems that in journalistic cases involving the EU rule of law or democracy or EU values, this will not be difficult to demonstrate.
Even a cursory analysis of the Anti-SLAPP Directive and NGO Financial Resolution shows that the line between defending fundamental values and interfering with the sovereignty of the EUMS is extremely thin.
3. What does it mean? Real effects - direction to EU journalist immunity and journalism service
It can be expected that the result of the new initiative in the EU, described above, will be to increase the protection and field of activity of journalists and NGOs that engage in political activity, referred to as protection of the rule of law or protection of democracy (both terms understood in the EU concept). As noted, this goal is to be achieved through a reduction in state sovereignty, where national law should give way in the face of the issuance of an EU directive harmonizing the legal regulations of the EUMS.
This effect will be all the broader as the broader the definition of the cross-border element triggering the Anti-SLAPP Directive's provisions. As can only be guessed, this element is not coincidentally defined extremely broadly, creating a so-called “open door” in the law for the EU regime. With the cross-border element understood in this way, virtually any civil litigation will have a cross-border effect at issue. After all, protecting democracy or the rule of law in one EUMS will, as it is now, be read as a matter of EU-wide importance. This may tend in the future towards attempts to substitute national jurisdiction for EU jurisdiction, which fits in with the idea, put forward for example in NGO Financial Resolution, of limiting, to a certain extent, the application of national law to journalists and third sector organizations. Such and similar initiatives raise the concern whether we are not heading for such an outcome that there are arguments for a situation in which certain NGOs and journalists are in a peculiar way “excluded” from the force of the applicable national law and placed above it using EU protection. In view of the content of the Anti-SLAPP Directive and the NGO Financial Resolution, such an effect cannot be ruled out, mainly due to leaving too much room for interpretation, where it is known that the only recognized interpreter will be the Court of Justice of the European Union, known for its wide creativity.
Added to all this is the EP's overtly proposed introduction of a mechanism to hide funding for NGOs fighting for democracy or restoring the rule of law in the fight for EU values.
Combining all the arguments presented in this section of the blog about the possible effects of the new initiative in the EU, one can conclude that perhaps the goal is to launch the construction of a new institution of law in the EU. Well, firstly, increasing the protection and field of activity, secondly, the idea of “exemption” from national law, thirdly, ensuring stable financing, if the situation requires it also in a hidden form, all this resembles the beginning of the construction of the institution of immunity. Perhaps we are dealing here with the beginning of a new institution of EU immunity for journalists operating in the EU journalistic service enjoying the protection of EU law. This, of course, is founded on the EU's pushed concept of the supremacy of EU law.
4. What do the treaties say about this?
An initiative that can have such effects is clearly incompatible with the provisions of the Treaties, in particular the Treaty on European Union. We are speaking here primarily of the protective principles expressed in Article 5 TEU, namely the principle of conferral, the principle of subsidiarity and proportionality. In the area in which the Anti-SLAPP Directive was issued, all these principles apply, as we are dealing here with shared competences. In this case in particular, the violation of the principle of conferral is glaring, since the EU directive, whose real purpose is to increase the protection and field of activity of journalists who engage in public debate aimed at fighting, for example, for EU values or the principle of the EU rule of law, was issued on the basis of Article 81(2), point (f) of the TFEU. This provision, after all, empowers the EU to adopt legal measures insofar as they concern the proper functioning of the internal market and ensure “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”. It's hard to imagine how difficult the purposive interpretation of this provision must have been in this case to connect the actual purpose of the Anti-SLAPP Directive with the content of Article 81(2), point (f) of the TFEU. In this case, it is easy to make the charge of competence creep. On the other hand, the theses and ideas expressed in the NGO Financial Resolution may blatantly stand in opposition to the principle of equality expressed in Article 4(2) TEU. Just for the record, it is worth emphasizing here that the EU should respect the equality of EUMS to the treaties, as well as their national identities, inherent in their basic political and constitutional structures, including with regard to regional and local self-government. The EU should respect the core functions of the state, especially those designed to ensure its territorial integrity, maintain public order and protect national security. It is not entirely clear how a principle with such content and with such imperatives directed at the EU would be reconciled with the new EU initiative presented in this blog. It seems that the EUMS, when creating the treaties, specified such principles for this purpose, so that they would have a protective function and prevent the EU from developing in an undesirable direction. For this reason, after all, according to the literal content of Articles 4 and 5 of the TEU, the EU should act within the limits of the competences granted by the EUMS by exercising them subsidiarily (refers to non-exclusive competences) and proportionately taking care, among other things, to respect the principle of equality.
5. Summary. A Beginning or a Joke?
Answering the question of whether this is the beginning of EU immunity for journalists or is it a joke, in light of the arguments presented, it falls to say that it is unfortunately both. Evidently, one can see the temptation to start constructing an institution along the lines of immunity, which would ultimately provide legal protection and a field of activity without worrying about legal consequences. An institution that would equip with the possibility of permanent financing devoid of public-legal restrictions. On this side one can say that one can see the beginning. On the other side stand the treaties, which have principles and a place in the hierarchy of sources of EU law. From this perspective, the adoption of the Anti-SLAPP Directive on such and not another legal basis can be seen as a joke. The ideas and theses expressed in the NGO Financial Resolution can be seen as an even bigger joke from the same perspective. So the new initiative in the EU described in this blog may be both a beginning and a joke. Unfortunately, neither one nor the other is cause for optimism.
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