The Anti-SLAPP Directive in the context of EU and Dutch private international law: improvements and (remaining) challenges to protect SLAPP targets

While the scope of the Anti-SLAPP Directive is broad, this paper argues that the criteria of ‘manifestly unfounded claims’ and the ‘main purpose of deterrence of public participation’ may challenge the protection of SLAPP targets. The Real Madrid ruling should nonetheless play an important guiding role in all Member States; the legal certainty and protection for SLAPP targets will increase by applying by analogy the factors of the Real Madrid ruling established by the CJEU to assess whether there is a manifest breach of the right to freedom of expression. Although the Anti-SLAPP Directive provides various procedural safeguards for SLAPP victims, it does not prevent SLAPP targets from being abusively sued in multiple Member States on the basis of online infringements of personality rights or copyrights. The recast of the Brussels Ibis and Rome II should alleviate this negative effect of the mosaic approach by adopting the ‘directed activities’ approach. While the public policy exception in Dutch PIL already has a great deal of potential to refuse the recognition and enforcement of third-country judgments involving a SLAPP, the grounds in Article 16 Anti-SLAPP Directive provide legal certainty, and likely have a deterrent effect on claimants outside the EU. As EU and Dutch PIL generally do not provide a venue for SLAPP targets to seek compensation for the damage and costs incurred regarding the third-country proceedings initiated by the SLAPP claimant domiciled outside the EU, the venue provided by Article 17(1) Anti-SLAPP Directive improves the access to Member State courts for SLAPP targets domiciled in the EU. However, although Articles 15 and 17 Anti-SLAPP Directive aim to facilitate redress for SLAPP victims, the resulting Member State judgments may not be effective in case these are not recognised and enforced by third states. Hence, international cooperation is important to combat SLAPPs worldwide.