When it is established that a claimant has pursued a malicious legal action against individuals involved in public participation, including journalists (a SLAPP lawsuit), the court may impose a fine of up to €20,000 — one of the provisions contained in the Draft Proposal of the Act on the Protection of Persons Engaged in Public Participation.
The draft, currently under public consultation, represents the long-awaited implementation of the EU Directive on protecting persons engaged in public participation from manifestly unfounded claims or abusive court proceedings (SLAPP – strategic lawsuits against public participation), adopted in April 2024. It is expected to be transposed into Croatian law by 7 May.
“SLAPPs are usually initiated by powerful actors, such as individuals, lobbies, corporations, politicians and public authorities, with the aim of silencing public debate. They often involve an imbalance of power between the parties, where the claimant holds a stronger financial or political position than the defendant,” the draft law explains.
The stated purpose of the new law is to remove obstacles to the smooth conduct of civil proceedings while providing protection primarily to journalists, but also to publishers, media organisations, whistleblowers and human rights defenders, as well as civil society organisations, NGOs, trade unions, artists, researchers and members of the academic community.
The proponents also emphasize that the draft goes beyond the EU Directive, whose scope is limited to civil and commercial proceedings with cross-border implications.
“The draft proposal extends protection beyond the Directive by providing that the law will apply to all civil and commercial proceedings initiated against natural and legal persons engaged in public participation, regardless of whether the cases involve cross-border implications,” the Ministry of Justice, Public Administration and Digital Transformation stated in its response to Hina.
A key feature of the law are procedural safeguards, including security for estimated litigation costs, early dismissal of claims, reimbursement of legal expenses, financial penalties and other sanctions. It is emphasized that “courts will always pay particular attention to the need for urgent handling of procedural safeguards,” with the Judicial Academy acting as the contact point.
Possibility of early dismissal of manifestly unfounded claims
Among the procedural safeguards, early dismissal stands out. Upon a reasoned request by a natural or legal person facing an abusive lawsuit (the defendant), the court may dismiss the claim at an early stage as manifestly unfounded.
The provision sets deadlines for submissions, the presentation of facts and evidence, and places the burden of proof of the claim’s validity on the claimant. “It is also possible, after the preliminary phase is concluded, for the court to immediately hold the main hearing and issue a judgment dismissing a manifestly unfounded claim at an early stage,” the ministry added.
Particular emphasis is also placed on financial penalties in cases of abusive litigation, as well as a deposit that the claimant may be required to provide. “Where it is established that the claimant conducted a malicious court proceeding against public participation, the court may impose a fine on a natural person claimant amounting to 10 percent of the value of the dispute, but not exceeding €5,000, or on a legal entity claimant amounting to 20 percent of the value of the dispute, but not exceeding €20,000,” the draft states.
In addition to financial penalties, a sanction may include the publication of the judgment in the media at the claimant’s expense, upon the defendant’s request, according to the Ministry of Justice. The draft also introduces a deposit (security) that the claimant must pay based on a reasoned request by the defendant.
“On the basis of such a request, the court may order the claimant to provide security for the estimated litigation costs, which would have to be reimbursed if the claim fails. The amount depends on the specific case,” the ministry told Hina, adding that once proceedings conclude in the defendant’s favour, costs may be covered from the deposited funds.
In addition to journalists, human rights, environmental and public resource organisations also targeted by SLAPPs
The draft law was prepared by a working group led by Fadila Bahović, State Secretary at the Ministry of Justice, Public Administration and Digital Transformation, together with her team. Members included judge and acting President of the Supreme Court Gordana Jalšovečki, Nives Zvonarić from the Ministry of Culture and Media, Jasna Vaniček-Fila from the Council for Electronic Media, representatives of the Croatian Journalists’ Association (HND), and representatives of the Ombudswoman’s Office and the Association of Independent Trade Unions of Croatia.
So far, the e-consultation platform has received only one public comment on the draft, but representatives of HND and several NGOs shared their views with Hina.
“Last year HND initiated the gathering of civil society organisations into the informal Catalyst network because, although media outlets and journalists are the most frequent victims of SLAPPs, organisations defending human rights, nature and public resources are also targeted. At a recent roundtable we organised, Professor Alan Uzelac explained that for the Anti-SLAPP Directive’s provisions to be applicable and effective, at least eight points in the Civil Procedure Act, the court’s main tool, would need to be amended, along with certain organisational regulations, the Court Rules of Procedure and the Courts Act,” said HND Secretary General Melisa Skender, who is also a member of the working group.
Regarding exposure to SLAPPs, Skender notes that it is positive that the proposed law covers national litigation, but problematic that it does not include criminal proceedings, which could lead to an increase in criminal cases.
“There is a simple solution to this problem, which HND has advocated for years, abolish all criminal offences against honour and reputation. The same recommendation has been repeated for years in European Commission rule-of-law reports and was also highlighted during last year’s visit of the Media Freedom Rapid Response mission,” Skender said.
A step forward in protecting against proceedings that are an end in themselves
She concluded that the success of the new law will also depend on the effectiveness of deterrent measures, while it remains to be seen how early dismissal and other mechanisms will function in practice before the courts.
On the other hand, the environmental organisation Zelena akcija stated that it is difficult to assess whether a single regulation will immediately produce results, especially given that activists, like journalists, have long advocated for a stronger Anti-SLAPP Directive.
“The Directive, and therefore our law, will not cover all such proceedings, for example criminal cases, and there are many of them. Three representatives of Zelena akcija have been exposed to one such proceeding for more than eight years. Nevertheless, this is certainly a step forward in protecting environmental defenders and journalists from proceedings that are an end in themselves,” the organisation said.
Gong, an organisation defending freedom of expression, welcomed the adoption of the Act on the Protection of Persons Engaged in Public Participation implementing the Anti-SLAPP Directive into Croatian law.
However, Gong also noted that, although this is a shortcoming of the Directive itself, the law covers only civil and commercial proceedings, not criminal ones. They explained that besides civil lawsuits for damages, Croatian legislation also предусматриes criminal liability for individuals who, by making factual statements or value judgments, violate another person’s right to honour and reputation.
“In practice, it is not uncommon for publishers to face civil proceedings for non-pecuniary damages, while journalists who authored the article are simultaneously sued for insult or defamation, which are criminal offences. Unfortunately, this represents a missed opportunity to protect against abusive criminal proceedings, both at the European and national legislative level,” concluded in Gong.