Milewska, Paulina

Nowicka, Zuzanna

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1/5Opportunities for the Protection of Freedom ofExpression at the EU Level arising from Real Madrid vsLe Monde Caseverfassungsblog.de/the-ball-is-in-the-game/Paulina MilewskaZuzanna Nowicka24 April 2024The Ball is in the GameIn 2017, after the assassination of the Maltese journalist Daphne Caruana Galizia, strategiclawsuits against public participation (SLAPPs) became an important topic on the EU level. Asa result, the EU adopted the anti-SLAPP Directive, which shall protect journalists fromabusive lawsuits that do not serve justice but only the sinister aim of silencing free press.Days from now, that directive will enter into force. Member States have two years forimplementation. Nevertheless, the Directive is not the EU’s only SLAPP-related legal projectat the moment. There is important litigation as well. This litigation originates, of all places,from the equally flashy and dirty world of professional football. In February 2024, AdvocateGeneral Maciej Szpunar delivered his opinion on the Real Madrid Club de Fútbol vs LeMonde case (C-633/22). The case addressed the problem of exorbitant damages targetingpress and introducing a deterrent effect on freedom of speech in transnational cases. It is theCourt of Justice of the European Union’s (ECJ) first opportunity to address the vastly growingproblem of SLAPPs.From a rule of law and, especially, freedom of the press angle, the case is of paramountimportance as it forwards, supported by the Advocate General Szpunar, a simple butgroundbreaking argument: two of EU law’s most fundamental principles, mutual recognitionand freedom of speech, are a strong basis to fight SLAPPs. This is crucial as the abovementioned SLAPP Directive will yield results only two years down the road.After giving some context, this blog posts develops the abovementioned argument thatfighting SLAPPs requires, or rather operationalizes, not only a very specific directive that willyield first results only two years from now but may utilize the most fundamental principles ofEU law: mutual recognition and freedom of speech (and the press!).2/5Facts of the case and the opinion of Advocate GeneralSo, first a few words to context. SLAPPs are lawsuits that are issued by powerful plaintiffs,such as politicians, business people and corporations, against those who speak up in thepublic interest, usually journalists, media outlets, academics and activists. The aim of theplaintiff is to silence the speaker and introduce a chilling effect, wining the case not thatimportant. SLAPPs are abusing mainly, but not exclusively, civil law (e.g. defamation). Theimbalance of power is an important part of the SLAPP cases – while plaintiff has unlimitedresources for legal endeavors, the defendant is struggling with finances. This creates aneconomic and psychological burden on the victim.Going back to the case – more than a decade ago, the Spanish football club Real Madridbecame an anti-hero for, apparently, hiring a “doping doctor”. The story broke in an article bythe French newspaper Le Monde. Real Madrid and a member of its medical team broughtlegal action in front of the Spanish court against Le Monde and the journalist who wrote thepiece. Real Madrid and said doctor claimed reputational damage. The Spanish courts agreedwith the football club and ordered Le Monde’s owner, the newspaper company SociétéÉditrice du Monde, to pay a fine of €390,000. Moreover, the courts ordered €33,000 to bepaid jointly by the journalist personally and the company.Real Madrid applied for enforcement of these judgments in France, resulting in the ParisCourt of Appeal dismissing its application in 2020. The decision was based on the publicpolicy clause, i.e. the French court held that the Spanish motion potentially interferes withfreedom of expression. This Franco-Iberic judicial impasse culminated when the FrenchCourt of Cassation referred seven questions to the ECJ with a request for a preliminaryruling under Art. 267 TFEU. In EU legal terms, the key issue is whether, in the EU legalorder, “the freedom of the press guaranteed by the Charter of Fundamental Rights of theEuropean Union (the Charter) constitutes a fundamental principle the breach of which canjustify recourse to the public policy clause.”In his February 2024 opinion AG Maciej Szpunar underlined that a Member State courtshould refuse or revoke enforcement if proceeding would manifestly breach freedom ofexpression. He underlined that freedom of expression is an essential principle of theEuropean Union’s legal order due to its importance for any democratic society. In caseswhere damages might be seen as exorbitant, hence leading to a deterrent effect on thefreedom of expression, the refusal of enforcement should be seen as justified. According tothe AG the damages should be considered manifestly unreasonable when: 1) a naturalperson would have to pay a sum which is several dozen times the standard salary in theMember State where the case takes place or when the person would struggle for years tocover the damages; 2) a legal entity would have it existence threatened by paying thedamages. Furthermore, he states the recourse to the public policy is justified only inexceptional cases.3/5Chance for strengthening the protection of freedom of media?But what to make of this case?Firstly, and quite remarkably given at least the Luxembourg judges’ tense relationship withthe Strasbourg court, the Real Madrid vs Le Monde case gives a chance to apply theEuropean Court of Human Rights (ECtHR) principles concerning freedom of expression inthe ECJ ruling. Such cooperation between courts is desirable and the opinion delivered bythe AG already leads into this direction. The AG uses a robust ECtHR judicature in order todefine terms such as “public participation”, “deterrent/chilling effect” or issues of “publicinterest”. Even though, these terms are defined now in the anti-SLAPP Directive, the termsdelivered in the ruling in the Real Madrid case can grant a further clarity on them. In the endthe ECtHR is deciding on issues concerning freedom of expression for decades, while it isfair to argue that ECJ is rather new in the game.Secondly, under the Brussels I regulation, mutual recognition of judgments issued in adifferent Member States is a rule. Such a solution stems from the principle of mutual trust,according to which values on which the EU is founded are observed in all Member States.Non-recognition is allowed only exceptionally, namely by recourse to the public policy clause(Article 34 (1) of the Brussels I regulation). According to long standing ECJ case law, suchrecourse is possible if the recognition of a judgment was to constitute a manifestinfringement of a rule of law regarded as essential in the legal order of the State in whichrecognition is sought or of a right recognized as being fundamental. It seems that thefreedom of expression and freedom of the press should be considered such a rule, as itconstitutes a fundamental right guaranteed by the Charter.On the other hand, ECJ is reluctant to a broad interpretation of exceptions to the principle ofmutual trust, such as the recourse to the public policy clause. According to the ECJ, if aMember States were to check that another Member State has observed fundamental rights,the underlying balance of the EU would likely be upset. Until no more than a decade ago, theECJ was actively using what Dean Spielmann calls the pro-integration approach to humanrights. The protection of fundamental rights was aimed at facilitating the flow of capital andgoods between Member States and not an end itself.Then, again, the principles are written in a stone only to some extent. The rule of law crisesin Hungary and Poland showed that the presumption upon which the principle of mutual trustis based must be rebutted in certain situations. It can be argued that breaches of humanrights or rule of law occur from time to time in all of the Member States. Nevertheless, insome Member States these breaches are manifested and systematic to the extent that ECJhad to revisit its approach to the principle of mutual trust. In this context, the ECJ ruled, inAranyosi and Căldăraru case and reinforced it in LM case, that court of a Member State cansuspend the execution of European Arrest Warrant on the basis of systemic deficiencies ofhuman rights protection in the issuing Member State and taking into account the individual4/5circumstances of the case. The CJEU will inevitably comment on the principle of mutual trustin Real Madrid v. Le Monde, and adopting an approach similar to that in ECtHRjurisprudence will be useful from the accession perspective.As noted by Gráinne de Búrca and Claire Kilpatrick, the international framework forprotecting human rights necessitates not just holding duty-bearers accountable to rights-holders, but also ensuring mutual accountability among duty-bearers. The ECJ has anopportunity to ensure just that by allowing for non-recognition of a judgment on the basis ofinfringement of a fundamental right. It also has to be stressed that the issue of mutual trustwas one among the two problems signaled by the ECJ in the Opinion 2/13 on draftagreement providing for the accession of the EU to the European Convention of HumanRights. A clear stance on the primacy of protection of human rights over the principle ofmutual trust could be of great importance in the context of the reopened accessionnegotiations. The ECtHR gave its view on this principle in the Avotiņš v. Latvia judgment.According to the long-standing Bosphorus presumption, state action taken to fulfill anobligation arising from membership in an international organization and leaving no discretionto the state should be considered compatible with the Convention. However, if during theenforcement proceedings a serious and substantiated complaint that the protection of aConvention right has been manifestly deficient. The court cannot dismiss the examination ofthat complaint solely based on the fact that they are applying EU law.Lastly, it should be noted that the case can be considered within the broader discussion onthe protection of values enshrined in Article 2 TEU on the ECJ level. By defining the relationbetween freedom of expression and public policy, the ECJ has a chance to grant a tool for aprotection of human rights (namely freedom of expression) to Member States. It can be saidthat sometimes for the EU, a crisis is an opportunity to further define its principles, and theemerging threats to freedom of expression and public debate, such as the case of RealMadrid v. Le Monde, should be seen as precisely such an opportunity.LICENSED UNDER CC BY SAEXPORT METADATASUGGESTED CITATION  Milewska, Paulina; Nowicka, Zuzanna: The Ball is in the Game:Opportunities for the Protection of Freedom of Expression at the EU Level arising from RealMadrid vs Le Monde Case, VerfBlog, 2024/4/24, https://verfassungsblog.de/the-ball-is-in-the-game/, DOI: 10.59704/036d42efb824dade.Explore posts related to this: 5/5Other posts about this region:EuropaLICENSED UNDER CC BY SA

The Ball is in the Game

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The Ball is in the Game

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