The UK Ministry of Justice has released an urgent Call for Evidence on Strategic Lawsuits Against Public Participation, ie SLAPPs, characterised as
an abuse of the legal process, where the primary objective is to harass, intimidate and financially and psychologically exhaust one’s opponent via improper means. These actions are typically initiated by reputation management firms and framed as defamation or privacy cases brought by individuals or corporations to evade scrutiny in the public interest.
They are claims brought by extremely wealthy individuals and corporations. The invasion of Ukraine has heightened concerns about SLAPPs, as we have clearly seen that aggression is closely associated with clamping down on free speech and reporting of events. We need to isolate these cases in devising counter-measures, so that while we prevent our justice system being abused we do not curb access to justice in legitimate cases. In responding to SLAPPs, we need to fully understand the breadth of litigation and range of misconduct involved. A Call for Evidence will enable us to establish a number of things.
Firstly, we want to hear at first hand from parties who have been involved in SLAPPs – their experiences and the impact on them personally and professionally. Secondly, we are conscious that high profile cases are likely to represent the tip of this iceberg, in two important respects. One is the number of pre-action letters that are issued in cases that never reach court as they result in a settlement or other form of agreement. The other is the chilling effect of SLAPPs – the perfectly appropriate news investigations that may be curtailed or not even started because of the fear or the risk of their incurring the crippling expense of High Court litigation.
The Call states
The term SLAPPs is commonly used to describe activity that aims to discourage public criticism through an improper use of the legal system.
SLAPPs have two key features:
• They target acts of public participation. Public participation can include academic research, journalism and whistle-blowing activity concerned with matters of societal importance, such as illicit finance or corruption.
• They aim to prevent information in the public interest from being published. This can be by threatening or bringing proceedings which often feature excessive claims.
Individuals or organisations wishing to prevent information reaching the public eye engage reputation management firms or legal professionals to help them do so. This will often result in communications to the targeted individuals or organisations which threaten litigation, though the desired outcome is to prevent further investigations from taking place. Occasionally SLAPPs serve to divert attention from legitimate enquiries, by commencing action on spurious points such that the target’s resources are consumed and taken away from their initial focus. SLAPPs are often framed as legal cases, but they represent an abuse of law and procedure as their principal objective is stifling public debate, rather than the pursuit of a legal remedy. SLAPPs are frequently threatened or brought in defamation law, though increasingly data protection and privacy law is being misused against free speech within the law.
Why are we looking at this issue?
The Government is concerned that SLAPPs threaten free speech within the law and the rule of law, which are fundamental parts of our democratic tradition. Public watchdogs, including the press and public officials, are vital in ensuring accountability and transparency in our legal system. We are aware that SLAPPs interfere with parliamentary affairs: reports suggest parliamentary clerks have been subject to SLAPPs such that their constitutional duties are impeded.
SLAPPs are often brought by powerful entities whose resources vastly exceed those whom they seek to silence, resulting in public interest reporting being withdrawn pre- emptively to avoid expensive confrontation. This means a single successful SLAPP can have far-reaching consequences, in effect censoring others who fear similar tactics.
Provisional data from the Coalition Against SLAPPs in Europe (CASE) estimates there were 14 SLAPPs cases in the UK in 2021, an increase on the two cases in both 2020 and 2019 and one case in 2018. Whilst this may appear to be a small number of cases, we are issuing this Call for Evidence to uncover information about cases which might have gone unrecorded. We believe there will be many, as well as cases which never reached court because the respondent was intimidated into settling, which are likely to far exceed the number of cases which reach court. The think tank Foreign Policy Centre found in its 2020 survey of 63 investigative journalists working globally on corruption that civil legal cases, including cease and desist letters, surveillance, interrogation by authorities and smear campaigns, were experienced by more than 50% of respondents. 73% of those receiving threats had been threatened with legal action. 61% of respondents also reported that their investigations had uncovered a link (directly or indirectly) with UK financial and legal jurisdictions.
The Government is supportive of media freedom here and abroad. We have taken action to protect the press through the National Action Plan on the Safety of Journalists led by the Department for Digital, Culture, Media and Sport and the Home Office, which provides measures to counter threats to journalists’ physical safety.
The Foreign, Commonwealth and Development Office lead on the Government’s participation in and support of the Media Freedom Coalition, a partnership of countries working together committed to media freedom and safety of journalists and to hold to account those who would harm journalists for doing their job. Members of the Coalition have signed the Global Pledge on Media Freedom, a written commitment to improving media freedom domestically and working together internationally.
Whilst SLAPPs are typically designed to intimidate opponents psychologically, there is evidence suggesting that these threats can escalate into physical harm. Tragic cases overseas, such as the murder of Daphne Caruana Galizia who reportedly faced over forty SLAPPs cases at the time of her death, illustrate how public interest investigative reporting can attract intimidation by lawsuit and, separately, risk to physical safety. In the first instance this Call for Evidence focuses on establishing evidence about the use of SLAPPs in England and Wales, before focusing on reforms within defamation law, which to date has been the primary vehicle for SLAPPs cases. We welcome broader suggestions on how to address SLAPPs to inform Government action to curb this abuse of law.
The Call centres on a SLAPPs Questionnaire -
Impact on SLAPPs recipients
Question 1: Have you been affected personally or in the conduct of your work by SLAPPs? If so, please provide details on your occupation and the impact SLAPPs had, if any, on your day to day activity including your work and wellbeing.
Question 2: If you have been affected by SLAPPs, please provide details on who issued the SLAPP (for example, a legal or public relations professional), the form (for example, an email or letter) and the content. Was legal action mentioned? If yes, please provide details on the type of action.
Question 3: If you have been subject to a SLAPP action how did it proceed? For example, a pre-action letter or a formal court claim resulting in a hearing. Did you settle the claim and what was the outcome of the matter?
Question 4: If you are a member of the press affected by SLAPPs, has this affected your editorial or reporting focus? Please explain if it did or did not do so, including your reasons.
Question 5: If you have been affected by SLAPPs, did you report this to anyone? Please explain if you did or did not do so, including your reasons. What was the outcome?
Question 6: If you have been affected by SLAPPs, please provide details on the work you were undertaking at the time, including the subject matter referred to by SLAPPs.
Legislative reforms Statutory definition for SLAPPs
Question 7: Do you agree that there needs to be a statutory definition of SLAPPs?
Question 8: What approach do you think should be taken to defining SLAPPs? For example, should it be to establish a new right of public participation? What form should that take?
Question 9: If a new right of public participation were introduced, should it form an amendment to the Defamation Act 2013, or should it be a free-standing measure, recognising that SLAPP cases are sometimes brought outside of defamation law?
Question 10: Do you think the approach should be a definition based on various criteria associated with SLAPPs and the methods employed?
Question 11: Are there any international models of SLAPP legislation which you consider we should draw on, or any you consider have failed to deal effectively with SLAPPs? Please give details.
Question 12: Would you draw any distinction in the treatment of individuals and corporations as claimants in drawing up definitions for SLAPP type litigation?
Reforms stemming from there being a defined cohort of SLAPPs cases
Question 13: Which other reform options for tackling SLAPPs would you place on a statutory footing? Please give reasons.
Question 14: Are there additional reforms you would pursue through legislation? Please give reasons.
Defamation (libel) laws
The Serious Harm Defence
Question 15: Does the serious harm test in defamation cases have any effect on SLAPPs claims?
Question 16: Are there any reforms to the serious harm test that could be considered in SLAPPs cases?
The defence of Truth
Question 17: Does the truth defence in defamation cases have any effect on SLAPPs claims?
Question 18: Are there any reforms to the defence of truth that could be considered in SLAPPs cases? For example, should we reverse the burden of proof in SLAPPs cases, so that claimants have to demonstrate why a statement is not true?
The defence of Honest Opinion
Question 19: Does the honest opinion defence in defamation cases have any effect on SLAPPs claims?
Question 20: Are there any reforms to the honest opinion defence that could be considered in SLAPPs cases?
The defence of Public Interest
Question 21: How far does the public interest defence in defamation cases provide a robust enough defence in SLAPPs claims?
Question 22: Are there any reforms to the public interest defence that could be considered in SLAPPs cases?
Reports protected by Privilege
Question 23: Does the privilege defence in defamation cases have any effect on SLAPPs claims?
Question 24: Are there any reforms to the privilege defence that could be considered in SLAPPs cases?
Question 25: Do you have any views on whether qualified privilege should be extended in relation to reporting of Parliamentary debate of SLAPPs.
Libel Tourism
Question 26: To what extent does the appropriate jurisdiction test assist as a defence to defamation in SLAPPs claims?
Question 27: Are there any reforms to the appropriate jurisdiction test that could be considered in SLAPPs cases?
Other Possible Defamation reforms on SLAPPs
Question 28: Do you consider that the Government should consider reforming the law on actual malice to raise the threshold for defamatory statements made against SLAPP claimants? Please give reasons.
Question 29: If you agree the Government should pursue actual malice reforms, what form should these take?
Other Possible Reforms
Question 30: Are there any other areas of defamation law that you consider may be reformed to address the problems SLAPPs cases give rise to?
Procedural reforms
Pre-Action Protocols
Question 31: Do you have any views or experience on how the Pre-Action Protocol for Media and Communications operates in SLAPPs cases? If so, to what extent does it help to regulate the conduct of SLAPPs claims? Please explain your response.
Question 32: Do you have any views or suggestions on amendments to Pre-Action Protocols which would improve upon existing pre-action conduct in SLAPP cases? Please explain your response.
Strike-Outs
Question 33: To what extent do you consider that SLAPP type litigation represents an abuse of process, and should be considered by courts for strike-out action?
Question 34: How would you propose to reform or strengthen the use of strike-out in addressing SLAPP type litigation?
Civil Restraint Orders
Question 35: Are Civil Restraint Orders currently an effective procedure against SLAPPs litigants? If not, what reforms do you propose? Question 36: Should the court consider anything beyond the current issues of number of applications and merits of a case when considering whether to issue a CRO?
Other procedural reforms
Question 37: Do you have any other suggestions for procedural reform to be pursued either by the Government or considered by the judiciary or Civil Procedure Rule Committee in relation to SLAPPs cases? Should a permission stage be applied to SLAPPs cases?
Regulatory reforms
Solicitors Regulation Authority Guidance on SLAPPs
Question 38: If you are a solicitor, does the SRA guidance provided on SLAPPs help you understand your professional duties in conducting disputes? Please explain your answer.
Reporting SLAPPs
Question 39: If you have been affected by SLAPPs, did you report the issue to a professional regulator? Please explain and give reasons for your decision. If you did so, what was the outcome?
Defamation costs reforms
Question 40: How was your SLAPP funded (private funding, CFA, other (please specify))?
Question 41: How were adverse costs addressed (private funding, ATE, other (please specify))?
Question 42: Please give details of the costs of the case, broken down (i) by stage and (ii) by which party had to pay them.
Question 43: Do you agree that a formal costs protection regime (based on the ECPR) should be introduced for (i) all defamation cases, or (ii) SLAPPs cases only – please give reasons?
Question 44: If so, what should the default levels of costs caps be for (i) all defamation cases, or (ii) SLAPPs cases only – please give reasons?
Question 45: Do you have any other suggestions as to how costs could be reformed in (i) all defamation cases, or (ii) SLAPPs cases only – please give reasons?
