New EU Directive shields against SLAPPs

The Directive aims to bolster free speech and public engagement against abusive court proceedings that are not intended to genuinely assert a right but are primarily aimed at preventing, restricting or penalising public participation. It applies to civil and commercial matters with cross-border implications brought against natural or legal persons and sets common rules on procedural safeguards. EU Member States must implement the Directive by 7 May 2026.

An example of a SLAPP lawsuit is the case of Maltese journalist Daphne Caruana Galizia, known for exposing corruption and organised crime in Malta. At the time of her assassination in 2017, she faced more than 40 lawsuits across various jurisdictions aimed at silencing her.

A new era for Austrian civil procedure?

The Directive outlines several key aspects to combat abusive litigation. First, Art. 10 mandates that claimants provide security for the estimated costs of the proceedings; a requirement that currently applies only to claimants from non-EU countries under Section 57 of the Austrian Civil Procedure Code ("ZPO"). Second, Art. 14 stipulates that claimants bringing abusive litigation must bear all types of costs, including full legal representation fees. These can even exceed statutory fee limits, unless deemed excessive. Additionally, Art. 11 calls for early dismissal of unfounded claims, while Art. 9 introduces the possibility for organisations (like NGOs) to support defendants or provide information. Art. 9 is modelled after the amicus curiae concept, where third parties provide opinions on legal or factual issues in an ongoing proceeding. Finally, Art. 15 permits courts to impose effective and dissuasive penalties or other equally effective measures, such as fines, compensation or judgment publication.

Although some elements of the Directive are already anchored in Austria, others require further enhancement for full alignment. Regarding security, the existing framework under Section 57 of the ZPO must be expanded to include claimants from other EU Member States. In terms of cost awards, the prevailing party can indeed claim reimbursement, but it is limited to costs outlined in the Attorneys' Fees Act. This often excludes full attorney fees, especially when the attorney charges the client on an hourly basis.

Section 408 of the ZPO already allows for the possibility of seeking reimbursement without a separate legal proceeding. Even ordinary damages claims provide some relief. Austria currently permits the dismissal of meritless claims, but more explicit procedures during preliminary hearings could improve this process. There is a great need for a more detailed approach to identify abusive litigation early on. The support for defendants is new for the ZPO and will require modifications to treat third-party input like legal opinions rather than party submissions. Lastly, while Austrian law imposes penalties for procedural misconduct, there is significant room for amendments to establish more effective remedies against abusive court proceedings.

Is Austria ready to defend against SLAPPs?

While some legal areas require fine-tuning, the necessary adjustments are manageable. A clear legal framework, trained judges and a good monitoring and reporting mechanism will be essential. The main challenge will be accurately identifying SLAPPs, which will likely require a preliminary hearing with a brief evidentiary procedure, rather than relying solely on the pleadings.

author: Verena Schnittler