After a succession of egregious examples, there is widespread agreement that something must be done about the malign phenomenon of strategic lawsuits against public participation, also known as Slapps. If it sounds arcane, it isn’t: it affects us all, in terms of what we say, publish and read, as well as how we make public policy. Last year, the Solicitors Regulation Authority defined the Slapp as “the misuse of the legal system, and the bringing or threatening of proceedings, in order to discourage public criticism or action”.
Three months ago, Wayne David, Labour MP for Caerphilly, introduced as a private members’ bill, the strategic litigation against public participation bill to “make provision about the misuse of litigation to suppress freedom of speech”. A second Commons reading takes place on Friday.
But there is a problem. Disappointingly, other than adapting the text of the relevant part of last year’s Economic Crime and Corporate Transparency Act 2023 (ECCTA), so as to broaden its scope beyond economic crimes, the private members’ bill simply copies and pastes the text of that law’s anti-Slapp provisions, and thus fails to address any of the problems and criticisms. This is a missed opportunity to get something on the statute books that is really effective and sends the right deterrent message to those who continue to abuse the justice system.
Typically used by the super-rich and powerful, such as oligarchs, Slapps stifle legitimate reporting and debate. They are evident particularly before cases ever reach a courtroom, with the deployment of legal letters that threaten journalists, whistleblowers, academics and campaigners with high costs and damages.
Slapps aim to “pile on the pressure” until investigations are shut down, and some important public interest stories never see the light of day, because of the risk of legal retaliation. In the UK, journalistic investigations have repeatedly exposed corruption among kleptocratic elites. Paul Radu, the cofounder of the Organized Crime and Corruption Reporting Project, was pursued through London’s libel courts for two years by an Azerbaijani MP mentioned in a 2017 “Azerbaijani laundromat” investigation. High-profile cases – such as those targeting Catherine Belton, Tom Burgis and Eliot Higgins, as well as the defamation litigation brought against abuse survivor Nina Cresswell by the person who “violently sexually assaulted her” – are just the most visible manifestations of a much broader problem.
In March 2022, the ministry of justice issued a call for evidence on reforms to tackle Slapps. The government said it would “not tolerate Russian oligarchs and other corrupt elites abusing British courts to muzzle those who shine a light on their wrongdoing”.
But what we now know – with one weak law already on the statute book and the recently published private members’ bill a simple cut-and-paste job of that – is that despite all the hype, what’s on offer is little more than a damp squib. It shows indeed that “fine words butter no parsnips”.
The ECCTA includes an anti-Slapp provision that provides courts in England and Wales with the power to strike out at an early stage of proceedings claims that relate to reporting on economic crimes that are disclosed in the public interest. There are some good features replicated in David’s private members’ bill, including the prospects of an early dismissal mechanism and a new cost protection regime for defendants. But they have the potential to be undermined by the inclusion of a subjective inquiry into the claimant’s mind, a notoriously difficult exercise, potentially time consuming and costly, which could undermine the law’s effective application. That the private members’ bill replicates this approach is troubling. So too is the new, overly narrow definition of public interest.
Both sides of the debate on Slapps – those who predominantly represent claimants and those who defend the rights of journalists and other public watchdogs – agree there are core deficiencies in the ECCTA anti-Slapp provisions. Notably, these provisions are significantly different from – and weaker than – the UK Anti-Slapp Coalition’s model law, which many still regard as a more effective template for a standalone law to tackle Slapps.
In its model law, the UK Anti-Slapp Coalition sets out three necessary conditions: a quick and early mechanism that will require claims targeting public participation to meet a higher threshold in order to advance to trial; costs for Slapp targets to be kept to an absolute minimum – with awards to targets on a full indemnity basis; and that exemplary damages should be available for cases where the claimant has exhibited particularly egregious conduct, and where the time and psychological harm caused to the defendant needs to be compensated. David’s private members’ bill fails to meet in full any of these three conditions.
While it may not be possible to reflect within David’s bill the wholesale change of language and approach of the coalition’s model law, it is deeply disappointing that none of the flaws and deficiencies identified in the ECCTA anti-Slapp provisions have been addressed.
These changes are essential to make sure any new law is robust and effective. The risk is that it simply creates another raft of costly procedural hurdles for Slapp defendants to clear. That would not be in their interest, or ours.
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