In recent years, Luxembourg has demonstrated a formal commitment to European standards for the protection of freedom of expression and public participation. One of the key elements of this policy has been the implementation of the EU-wide anti-SLAPP initiative — a mechanism designed to protect journalists, human rights defenders, and civil society activists from the abuse of judicial procedures.
This refers to EU Directive 2024/1069, adopted in 2024, which aims to counter so-called Strategic Lawsuits Against Public Participation (SLAPP). Such lawsuits are used not to protect rights, but to exert pressure and intimidation — primarily through legal costs, lengthy proceedings, and the risk of sanctions.
The directive provides, in particular, for the early dismissal of manifestly unfounded claims and for shifting costs onto the claimant.
In Luxembourg, this approach is currently being implemented through a national bill transposing the directive. The government emphasizes that the goal is to protect against attempts at “censorship and intimidation” through judicial procedures.
However, a fundamental problem arises here.
Limited Scope of Anti-SLAPP: A Blind Spot in the System
Despite its stated objectives, the European anti-SLAPP directive has a limited scope. It applies primarily to civil and commercial matters with a cross-border element.
This means that a significant portion of real pressure on journalists and activists — including:
- administrative procedures
- criminal prosecution
— remains outside these protection mechanisms.
These forms of pressure, in many countries including Luxembourg, are becoming key tools of influence. They are less visible than classic civil lawsuits but often more effective: administrative sanctions and criminal proceedings create a far stronger “chilling effect” than even costly litigation.
Thus, the formal transposition of the directive creates an illusion of protection while leaving the main channels of pressure untouched.
Even if such cases do not always result in actual imprisonment, the mere fact of criminal prosecution creates a powerful deterrent effect.
A classic example is the case of journalist Marc Thoma. He was convicted in Luxembourg for quoting a publication about alleged corruption. Only the intervention of the European Court of Human Rights led to the recognition of a violation of freedom of expression.
This case demonstrates that:
- criminal and quasi-criminal sanctions are applied to journalistic activity
- protection comes post factum — only after conviction
- the national system itself does not always prevent such cases
Another systemic example is the LuxLeaks case. Journalists and whistleblowers who exposed tax rulings were subjected to criminal prosecution and faced potential prison sentences.
Even though the public interest was ultimately recognized, the process:
- lasted for years
- involved serious legal risks
- had a pronounced chilling effect
Judicial Restrictions as a Form of Pressure
In more recent cases, pressure manifests not only through criminal law but also through judicial restrictions on the dissemination of information.
In the so-called “Nickts case,” a court prohibited journalists from RTL Luxembourg from naming a person convicted in a major fraud case.
The Press Council explicitly characterized this as a restriction on freedom of expression and the public’s right to information.
This practice is important because:
- formally, it is not a criminal punishment
- but in practice, it restricts the content of journalistic publications
- and constitutes direct interference in the work of the media
Second Vector: Restriction of Access to Justice
Against this background, particular attention is drawn to a second initiative — linked to draft law No. 8721, aimed at limiting the analysis and dissemination of information about case law (the initiative “against restrictions on the analysis of judicial decisions” on venia.lu).
This initiative raises a fundamental question: can society effectively oversee the judiciary if access to information about it is restricted?
The judicial system in Luxembourg is formally based on the principle of public hearings — as a guarantee of transparency and fairness.
However, restricting the ability to analyze judicial decisions — even if justified by personal data protection or other considerations — effectively narrows the space for public oversight.
For journalists and human rights defenders, this means:
- reduced ability to investigate judicial practice
- limitations on criticism of court decisions
- increased risks when publishing materials
The Paradox of Legal Policy
As a result, a paradoxical situation emerges:
On the one hand, Luxembourg:
- implements the European anti-SLAPP directive
- declares protection for journalists and human rights defenders
On the other hand:
- leaves key forms of pressure (administrative and criminal) unprotected
- promotes initiatives that restrict access to judicial information
This dual approach creates a contradiction between the formal and the actual protection of freedom of expression.
Conclusion
Real protection of journalists and human rights defenders is impossible without a comprehensive approach. This means:
- extending anti-SLAPP mechanisms to administrative and criminal procedures
- preserving and strengthening the openness of the judicial system
- ensuring the public’s right to analyze and criticize the judiciary
Without this, anti-SLAPP risks remaining a symbolic instrument — important on paper, but limited in practice.