King Charles’ first king’s speech as monarch this week included a pledge of ‘legislation to protect public interest journalism’. However the Media Bill also published this week has nothing to say on the hottest debate within public interest journalism – on the question of strategic lawsuits against public participation (SLAPPs).
The Economic Crime and Transparency Act, which received royal assent last month, introduces an early dismissal mechanism for cases defined as SLAPPs by the court, as well as a new costs protection regime.
However, veteran media lawyer David Hooper, whose new book Buying Silence examines the history of SLAPP cases from the 1970s onwards, said the legislation is inadequate. The act covers only SLAPPs associated with economic crime: the assumption that this will encompass the vast majority of such cases is flawed, he said. It is based on a misunderstanding of the Foreign Press Centre’s apparent estimate in its landmark ‘London Calling’ report on SLAPPs that 70% of such cases related to economic crime. This estimate, however, emerged from a survey of journalists covering financial crime and corruption. ‘When one takes into account all the SLAPPs relating to sexual assault and harassment, environmental issues or bad practices by professionals in a range of industries, the proportion of SLAPP actions related to economic crime would be some way below 70%,’ he said.
The Foreign Press Centre, however, denied ever estimating that 70% of all SLAPPs are connected to economic crime: it would be impossible to know what all SLAPPs are about, said Susan Coughtrie, director. Indeed this cuts to the heart of the issue, Coughtrie said: ‘If a SLAPP is successful, particularly pre-publication, you never hear about it at all.
‘We need universally applicable SLAPP protections, ideally in the form of a standalone UK anti-SLAPP law.’
In theory, the government is committed to extending anti-SLAPP measures. Relaunching its 2021 ‘national action plan for the safety of journalists’ last month, culture secretary Lucy Frazer KC said the revamped plan ‘will strengthen efforts to protect journalists working in the UK from harm, enhancing their freedom to hold the powerful to account without fear of abuse or harassment’. A government-sponsored SLAPPs taskforce set up in September is expected to come up with proposals for further legislation.
Not surprisingly, some lawyers working in the reputation-management sector are concerned. This week, the Society of Media Lawyers (SML), which represents claimant practitioners, said the media narrative on SLAPPs ‘grossly exaggerates the problem, and unfairly singles out media lawyers for criticism’. This week the society called on the Solicitors Regulation Authority to clarify its guidance on SLAPPs, warning that without such clarification solicitors will have to decline to act, for fear of being found in breach of their regulatory obligations, and therefore litigants ‘will be unable to obtain legal representation for serious and complex High Court proceedings.
‘National action plan for the safety of journalists will strengthen efforts to protect journalists working in the UK from harm, enhancing their freedom to hold the powerful to account without fear of abuse or harassment’
Lucy Frazer KC, culture secretary
‘This would raise further Article 6 and 8 ECHR/access to justice issues and place an obvious burden on the courts in having to conduct trials with litigants in person,’ the society said.
The appeal to the SRA was the follow-up to a forthright attack on the Law Society, which the society accused of advancing ‘a one-sided and misleading account of the issues’. Chancery Lane responded by stressing the need to take into account the interests of all members – both claimant and defendant – along with access to justice and the rule of law. ‘We’re happy to work with [SML] to further inform our thinking – just as we are happy to hear all positions,’ Society president Nick Emmerson said.
When asked about the omission of SLAPPs from the Media Bill, the Department for Culture, Media and Sport pointed to a measure that will repeal section 40 of the Crime and Courts Act 2013. The provision, drawn up by the coalition government following the Leveson inquiry into the practices of the press, has never been enacted. The government said it could force publishers to pay the legal costs of the people who sue them, even if they win.
Yes even this move – a manifesto commitment – will be controversial. Hanna Basha, partner at London firm Payne Hicks Beach, summed up the objection. Section 40 ‘was designed to encourage disputes away from the courts and into the hands of regulators, making the press more accountable and disputes easier and cheaper to resolve’, she said. ‘The shelving of these reforms is disappointing, but given the continuing influence of the press on this government, hardly surprising. If current polls are correct it will soon fall on a Labour government to grasp the nettle.’
