Freedom of Expression in the Face of Abusive Lawsuits: What the Potential Anti-SLAPP Law Promises
Cristina Durnea, Lawyer
Over several years, the concept of SLAPP (Strategic Lawsuits Against Public Participation) has become increasingly discussed in the public space. This has occurred, in particular, in the context of adoption of an EU Directive requiring Member States to introduce mechanisms for protection against abusive court proceedings targeting persons engaged in public participation. In short, SLAPPs are those court proceedings through which powerful actors, such as public officials, politicians or businesspeople, use the judicial system to silence journalists, non-governmental organizations or civic activists who legitimately participate in a public debate. As often happens when a phenomenon is finally given a name, many local journalists have been able to clearly recognize that a number of lawsuits brought against them after publication of investigative reports also includes SLAPP cases.
Having worked for many years within the legal assistance programme of the Independent Journalism Centre, I have come to understand what absurd defamation lawsuits filed in connection with publication of materials and investigations of public interest really mean for a newsroom. At first glance, such cases may seem like ordinary legal disputes. But they are not so. For a newsroom, especially a small one, they mean legal defence costs that are difficult to bear, time diverted from editorial work, stress, uncertainty and constant pressure on the entire team. For example, at the end of 2021, the CU SENS newsroom faced six lawsuits filed in connection with two journalistic investigations. The claimants – companies and businesspeople behind them – targeted not only the media outlet in their lawsuits, but also the journalists who authored the investigation materials, meaning that the pressure targeted not only the institution, but also the persons who researched and published information of public interest. Although the cases that have already been resolved ultimately ended with failure for the claimants, of course, the pressure effect nevertheless occurred. The proceedings lasted for years, consumed resources and created pressure on the editorial team. In one of the cases, the claim was dismissed only in 2026, i.e. almost five years after publication of the investigations concerned.
Of course, not every defamation lawsuit is an abuse. The right to the protection of honour, dignity and reputation is a legitimate right, and persons who consider themselves injured must have access to justice. The problem arises when this right is used as a pretext for intimidation, harassment and financial exhaustion of the media.
The news that the Ministry of Justice has prepared an anti-SLAPP legislative package was undoubtedly welcomed. Especially since the draft law is a good one and with ‘the whole nine yards’, as it goes well beyond merely transposing the minimum standards provided for by the EU Anti-SLAPP Directive. It seeks to build a broader mechanism, inspired by two other key documents – the European Commission Recommendation and the Recommendation of the Committee of Ministers of the CoE. If it is voted, the proposed law will provide courts with procedural tools enabling them to quickly identify manifestly unfounded claims and abusive court proceedings against persons engaged in public participation, including against journalists that publish investigations of public interest.
How the anti-SLAPP mechanism will be included in the national legislation
The draft law does not imply developing a separate anti-SLAPP law, but amending several normative acts. These are mainly the Law on Freedom of Expression (LFE) and, subsequently, the Contravention Code, the Law on State-Guaranteed Legal Aid, the Law on State Fees and the Code of Civil Procedure.
A central element of the draft law is introduction in the LFE of the concept of public participation, defined as making any statement or carrying out any activity by natural or legal persons in the exercise of the right to freedom of expression and information, freedom of the arts and sciences or freedom of assembly and association, as well as preparatory, supporting or assisting actions directly related to them, concerning a matter of public interest.
The definition of public participation is formulated in a quite broad sense. It protects not only the classic journalistic article or the public statement itself, but also any legitimate form of communication, criticism, dissemination of information or civic participation (journalistic investigations, videos, online posts, press releases, public campaigns, protests, activities of monitoring the authorities or other forms of involvement in public debates). Although, in practice the media is most frequently targeted by SLAPPs, the draft law does not reserve protection exclusively for journalists. It will apply to abusive proceedings brought against any natural or legal person engaged in public participation, including newsrooms, non-governmental organizations, experts, activists, researchers, artists, professional associations or other entities legitimately participating in matters of public interest.
It is also important that the draft law also extends protection beyond the direct author of a statement or an investigation. Following the anti-SLAPP logic, judicial pressure may target not only the person who signs the material, but also editors, producers, experts, lawyers, volunteers, supporting organizations or other persons who contributed to researching, preparing, supporting or disseminating information.
Public participation must concern matters of public interest, such as corruption, abuse of power, activities of public officials, functioning of institutions, management of public funds or public health. This requirement distinguishes anti-SLAPP protection from purely private litigation or legal disputes lacking public significance.
Abusive court proceedings
The second concept introduced by the draft law is abusive court proceedings against public participation. Simply put, these are proceedings that do not truly seek to protect a right, but are instead used to stop, limit or punish participation in the public debate.
The definition contains three essential elements. The first concerns the true purpose of the proceedings. Although a claimant may formally allege, for example, the damage to honour, the court will have to determine whether the proceedings genuinely seek to protect that right or whether they are used primarily to intimidate, exhaust or punish a person for speaking on a matter of public interest.
The second element concerns the main purpose of the proceedings. For a case to be considered abusive within the anti-SLAPP meaning, its predominant purpose must be to prevent, restrict, or punish public participation. In practice, there may be mixed situations where the claimant legitimately alleges a violation of a right, but nevertheless uses the proceedings primarily to put pressure on the defendant.
The third element concerns the lack of merit of claims. Not every inconvenient lawsuit is undoubtedly a SLAPP. For the special mechanism to apply, the claims must be wholly or partially unfounded and combined with an intention to intimidate. For example, even if a person alleges a minor harm to reputation, proceedings may become abusive if accompanied by clearly excessive claims for damages or disproportionate remedies.
The draft law also provides several indicators that may point to the abusive nature of proceedings. These include an imbalance of power between the parties, excessive financial claims, existence of several lawsuits initiated on similar matters, intimidation or harassment, and abuse of procedural tactics. These indicators are not exhaustive and do not prove, individually, the existence of a SLAPP. Rather, the court will have to assess the circumstances of the case.
Scope of application of the anti-SLAPP mechanism
The draft law applies the anti-SLAPP safeguards to civil proceedings initiated against natural or legal persons as a consequence of their involvement in public participation. In other words, the mechanism will apply primarily to defamation proceedings, when, for example, individuals featured in journalistic materials claim that their honour, dignity, or professional reputation has been harmed by the publication of public interest investigations. The draft law also excludes administrative litigation, arbitration proceedings, criminal proceedings and civil claims brought within criminal proceedings, as well as certain special proceedings regarding the compensation for damages caused by judicial authorities.
What remedies will be available to the defendant (the newsroom or the journalist)
The draft law provides the newsroom targeted by an abusive lawsuit with three remedies. The defendant may request that the claimant provide a bail, may request the early dismissal of a manifestly unfounded claim and seek remedies in the event of abusive proceedings. These requests must be examined by the court as a matter of urgency and with priority.
Bail. The court will be able to require the claimant to deposit a sum sufficient to cover the estimated costs of the proceedings and any damage caused by bringing the action. This measure is intended to discourage speculative or intimidating lawsuits. Where a claimant is required to assume a genuine financial risk, they are less likely to use litigation merely as a means of exerting pressure on journalists.
Early dismissal. The most significant innovation introduced by the draft law is the early dismissal procedure for manifestly unfounded claims. The defendant journalist will be able to request dismissal of the action before the hearing begins in the court of first instance, that is, at an early stage of the proceedings. The defendant will be required to prove that the proceedings arise from their involvement in a matter of public interest, for example, publication of a journalistic investigative report. However, the defendant will not be required to prove that the claimant’s allegations are unfounded. After filing the claim, the claimant (the one who brought the action against the newsroom in court) will have to prove that their action has a minimum factual basis. In other words, the party who initiated the proceedings must explain why the court should continue examining their claim.
The procedure will usually be conducted in writing. The claimant will have at most 15 days to present their position, and the court will be required to rule on the claim within at most one month. This procedure could significantly change the way the litigation against the media is handled. However, the effectiveness of the mechanism will, of course, depend on how the judges will apply it.
The draft law also allows the court to raise the issue of early dismissal, on its own initiative, when it finds indications that the action is manifestly unfounded. This solution is particularly useful in cases where the defendant does not have immediate access to specialized legal aid.
An important rule is that the claimant cannot avoid the consequences by simply withdrawing the action or by changing the claims. Where the proceedings have already been used abusively and have caused pressure on the defendant, the remedies may still be applied.
Costs, compensation and fine
An anti-SLAPP mechanism is not complete if it merely provided for the dismissal of unfounded claims. The draft law provides for three types of remedies that can be applied in SLAPP proceedings.
The court costs can be imposed on the claimant when the court finds out that the proceedings are abusive, including in the case of an early dismissal. This solution is natural. The defendant should not have to bear the costs of defence in a lawsuit that should not have been brought.
The compensation may cover a broader range of damages, such as financial losses, reputational damage, emotional distress, disruption of professional activity, postponement of investigations or depletion of organizational resources.
The fine is probably the most deterrent. The draft law provides for the application of a fine ranging from 20 to 5,000 conventional units, i.e. from 1,000 to 250,000 MDL. The fine may be imposed regardless of whether it was requested or not by the defendant, and the amount is payable to the state budget.
The draft law also empowers the court to order the publication of the judgment, in whole or in part, at the claimant’s expense. This remedy may be particularly important where the mere initiation of the lawsuit has damaged the defendant’s image. In the public area, the fact that a journalist or a newsroom has been ‘sued’ may be used to undermine credibility. Publication of the judgment can help restore the truth and explain the abusive nature of the lawsuit.
Foreign judgments
The draft law also contains provisions on the judgments delivered in other states. The Republic of Moldova will be able to refuse to recognize or enforce a foreign judgment if it results from manifestly unfounded or abusive proceedings against a person from the Republic of Moldova who was engaged in public participation.
The person concerned will also be able to claim compensation in the Republic of Moldova for the damages suffered and the costs incurred in an abusive litigation initiated abroad. These provisions are necessary because journalistic investigations and public campaigns can easily go beyond the borders of a state. Without such provisions, a claimant could try to choose a more favourable jurisdiction in order to put pressure on the defendant.
Information and statistical data
The draft law also provides for information and data collection obligations. The Office of the People’s Advocate will be required to publish information on the available safeguards and remedies. The Agency for Digitalization in Justice and Judicial Administration will be required to collect and publish, on a quarterly basis, data on applications for early dismissal, judgements and cases in which courts found proceedings to be abusive.
Decriminalization of defamation as an administrative offence
Another significant amendment proposed in the Ministry of Justice’s draft law is the repeal of Article 70 of the Contravention Code, which punishes defamation. This intervention may seem unrelated to the civil anti-SLAPP mechanism. In reality, however, it complements the underlying rationale of the safeguards. Disputes regarding honour, dignity and reputation must be resolved through civil-law remedies that are proportionate and compatible with freedom of expression, rather than through punitive state sanctions.
For the media, this proposed legislative amendment is undoubtedly useful. In recent years, media organizations have repeatedly reported that Article 70 has been used as a means of exerting pressure on journalists.
State-guaranteed legal aid and exemption from court fees
The draft law further stipulates that persons who wish to seek early dismissal may benefit from state-guaranteed legal aid. In addition, victims of abusive proceedings will be exempted from state fees and stamp duties when claiming compensation for the damage caused by abusive litigation.
From text to practice there is not just one step. The real test of the anti-SLAPP mechanism is yet to come
To speak frankly, the anti-SLAPP draft law is one of the most significant recent legislative initiatives aimed at protecting freedom of expression and civic space in the Republic of Moldova. And, to give Caesar what is Caesar’s, one of the main merits of the author of the draft law (the Ministry of Justice) is that it did not confine itself to a minimal transposition of the EU Anti-SLAPP Directive, but sought to build a complex mechanism, applicable to local realities.
From this perspective, the Moldovan draft law is even more progressive than certain European solutions. Malta, for example (a state that is inevitably associated with the case of the journalist Daphne Caruana Galizia, who became a symbol of the fight against SLAPPs) has been criticized because its anti-SLAPP legislation was limited to cross-border cases. Unlike the Moldovan initiative, Malta’s approach does not provide protection against domestic SLAPPs, that is, precisely against those proceedings in which local journalists are sued by local actors, in local courts, for investigations of local public interest.
At this stage, the draft law is currently under consideration by the Ministry of Justice, going through a round of public consultations in April 2026 and, most likely, is to reach the Parliament in 2027.
The true value of the draft law, however, will not be obvious at the time of adoption, but, as in the case of many other laws, in the way it will be applied. The entire range of tools made available to journalists stuck in the ‘ring’ of the courts will remain fragile as long as the judicial system is not prepared to use them correctly.
After the discussions held with several representatives of the legal defence profession and the judicial system, we also revealed a number of natural concerns. One of them relates to the risk that the anti-SLAPP mechanisms, more precisely the early dismissal of manifestly unfounded claims, will be applied incorrectly and result in unjustified restrictions of the right to access to justice. Another equally sensitive issue will be the ex officio application of the early dismissal procedure. At least informal discussions with several judges suggest certain reluctance towards the idea of the court raising the issue of the manifestly unfounded nature of an action on its own initiative. The reluctance can be understood given the fact that judges usually maintain strict neutrality with respect to the procedural initiative of the parties.
The period before the proposed legislation enters into force should therefore be used for training and awareness-raising. Judges will need applied training, including on the criteria of identifying abusive proceedings, assessment of the imbalance of power, disproportionate nature of claims and deterrent impact on the media. Lawyers, in turn, must understand how to effectively access the anti-SLAPP mechanisms, in the interests of the representatives. Journalists and newsroom staff must know that these safeguards are available and understand how they may be used.
The Republic of Moldova undoubtedly needs this mechanism a lot. If adopted and implemented seriously, the proposed anti-SLAPP law could rebalance the powers in abusive litigation against the media. If treated as another exercise of European harmonization, it will remain a nice formula in a system where the very intentional abusive lawsuits against the media continue to be, in many cases, a punishment.
The analysis is published as part of the project “Resilient press, informed voters: protecting elections in Moldova against disinformation” financially supported by the Embassy of the Netherlands in Moldova. The opinions expressed in the analysis belong to the authors and do not necessarily reflect the donor’s point of view.
