Anti-SLAPP measures crack down on abuse of legal proceedings

What is a SLAPP?

SLAPP is an acronym for Strategic Lawsuits Against Public Participation. The term SLAPP is used to refer to proceedings (typically for libel) which are brought by wealthy individuals, with the intention of stifling legitimate criticism and debate. 

 

Why are SLAPPs in the news?

Concerns have been raised that SLAPPs are being used by wealthy individuals to stifle free speech and discourage legitimate investigation by journalists and campaigners. Journalists have become wary of publishing investigative stories when they could be faced with financially ruinous legal proceedings as a result, even if what they have published is entirely legitimate. 

For example, in the immediate wake of the Russian invasion of Ukraine, certain oligarchs sought to use litigation to stifle journalism reporting on their activities. The government has been under increasing pressure to legislate on the matter ever since.

Now, some 15 months after the Ministry of Justice first published a call for evidence, amendments to the Economic Crime and Corporate Transparency Bill will bring an end to the majority of SLAPPs. Abusive legal proceedings brought by wealthy individuals to evade scrutiny and deter critics are to be defined in English and Welsh law for the first time.

According to Secretary of State for Justice Alex Chalk KC: “These measures will protect the values of freedom of speech that underpin our democracy, and help better protect reporters who are shining a light on their crimes.”

The Ministry of Justice commented that its additions to the Economic Crime and Corporate Transparency Bill “will enable the government to bring a swift end to the vast majority of SLAPPs cases, as at least 70% of the cases referenced in a report about SLAPPs, published in April 2022 by the Foreign Policy Centre and ARTICLE 19, were connected to financial crime and corruption”.

 

What is the new SLAPP legislation?

Amendments to the Bill, which give judges powers to dismiss cases classified as SLAPPs at an early stage, are based on two tests:

• firstly, whether a case is a SLAPP or not; and 
• secondly, whether the claim has a reasonable chance of success.

The responsibility lies with the complainants to prove their case has merit, rather than leaving to the defendant to prove that it does not.

In addition to the early dismissal process, there will be limitations on the level of costs which can be recovered for such claims, which will no doubt be good news for investigative journalists.

The legislation will define the characteristics of SLAPPs relating to economic crime in law as follows:

A claim is a “SLAPP claim” if -

• the claimant’s behaviour in relation to the matters complained of in the claim has, or is intended to have, the effect of restraining the defendant’s exercise of the right to freedom of speech
• the information that is or would be disclosed by the exercise of that right has to do with economic crime
• that disclosure is or would be made for a purpose related to the public interest in combating economic crime
• any of the behaviour of the claimant in relation to the matters complained of in the claim is intended to cause the defendant harassment, alarm or distress, expense or any other harm or inconvenience, beyond that ordinarily encountered in the course of properly conducted litigation.

 

Will there be drawbacks to the new SLAPP legislation?

The response of the legal profession to the proposed new law has been mixed.

Some have commented that the focus on economic crime in the legislation means that SLAPPs could still be used to stifle scrutiny in some cases. 

The UK Anti-SLAPP Coalition, an informal working group established in January 2021, co-chaired by the Foreign Policy Centre, Index on Censorship and English PEN, welcomed the amendment, but contended it should protect all public interest speech. It also expressed concerns that it was contingent on the intent of the claimant, which it felt could be a “difficult, time-consuming and costly” exercise to prove.

Susan Coughtrie, the director of the FPC, said the amendments were “a crucial step towards preventing those benefiting from proceeds of crime from being able to use them to shut down scrutiny into that wrongdoing by misusing UK law. Nevertheless, this is only a partial success story – the UK government must move as quickly as possible to ensure such protections are available to all those subject to SLAPPs, regardless of the subject matter.”

 

Do you need help with a libel claim?

Whilst SLAPPs are likely to be limited to cases involving journalists, you might find yourself as the defendant in a claim with very little merit, which has been brought by a wealthy individual, in order to put you under pressure. In those circumstances, the new SLAPP legislation might protect you. 

Contact us today for a discussion with one of our expert solicitors, if libel proceedings have been issued against you, or if you have been the victim of slander. 

Article credit: Lalla Merlin