FEATURE
SLAPPs – Some thoughts – Another view What is a SLAPP? The term generally refers to a civil lawsuit filed by an individual or corporate body against non-government individuals or organisations (NGOs) including journalists, media bodies and others on a substantive issue of some political interest or social significance. SLAPPs are usually initiated by wealthy individuals or corporate bodies with the aim to shut down investigations and critical speech by intimidating critics into silence and draining their resources. In the process, they distract and deflect discussions on human rights, social responsibility and corporate social responsibility, and – by masquerading as ordinary civil lawsuits – convert matters of public interest into technical private law disputes. We should not lose sight of the fact that in other jurisdictions, where there are different laws, some SLAPPs result in criminal proceedings. Thankfully, that does not apply in the UK. “SLAPPs are abusive lawsuits filed with the purpose of shutting down acts of public participation, including public interest journalism, peaceful protest or boycotts, advocacy, whistleblowing, or simply speaking out against abuse of power. SLAPPs target anyone who works to hold the powerful to account or engage in matters of public interest: so-called “public watchdogs.” This includes journalists, activists, rights defenders, whistleblowers, civil society organisations, trade unions and professional associations, academics.” We need therefore to recognise that SLAPPs can affect a wider range of targets than those that have so far appeared in our courts and may be represented in past or live cases that have not (yet) resulted in the initiation of litigation. We should also remember that at the time of her assassination in 2017 Daphne Caruana Galizia, the Maltese investigative journalist, was facing some 40 SLAPP cases. Do we need legislation to control SLAPPs? The Law Society (TLS) in its capacity as the independent professional body for solicitors in England and Wales, the voice of solicitors, and in its representative capacity for driving excellence in the profession and safeguarding the rule of law, responded to the Ministry of Justice call for evidence on SLAPPs and has decided that we do not. However, it said that any reforms or new measures should be proportionate, evidence-based and take account of the following: striking the right balance between freedom of speech especially in relation to the public interest and the rights of individuals and businesses to protect their reputation; retaining access to justice for both claimants and defendants, particularly when reforms are considered cumulatively; increasing legal certainty in the field (avoiding satellite litigation and associated costs/demands on court time); decreasing the “chilling effect” caused purely by uncertainty of the law, rather than the merits of a case; exploring methods which would ensure that the parties are operating on more of a level playing field concerning costs. In general terms, lower costs would be to the benefit of all parties. However, any changes to the current costs system 22 | SURREYLAWYER
must be undertaken after careful research and consultation and should be based on clear evidence. Whilst I agree with that decision in principle, TLS has decided that some control is needed provided that it is compliant with the Rule of Law and rights of access to the courts and justice. We should not lose sight of the fact that the Government may decide that legislation is needed despite the view we hold. Several countries have passed legislation that aims – or can be used – to protect defenders against SLAPPs, such as Australia, the US (30 states), Canada (in British Columbia, Ontario, Quebec), Thailand, the Philippines and Indonesia. The EC is moving towards a common platform for controlling SLAPPs. The UK Government Justice Minister James Cartlidge said, “the Ministry of Justice is monitoring SLAPP threats against journalists and announced that the UK will be a member of the Council of Europe’s inaugural working group on SLAPPs with an anti-SLAPP draft recommendation for member states due in December 2023. “I will be giving SLAPPs in UK courts urgent consideration. I want to make it clear that the Government are committed to a robust defence of transparency and freedom of speech. We will not tolerate anything that risks tarnishing the integrity of our judicial and legal profession.” Do we need a definition of SLAPPs? TLS recognises that there is no universally accepted definition and that creating one that satisfies everyone is probably impossible. However, we should not lose sight of the fact that the government may wish to have such a definition in order to progress with reforms whether by legislation or otherwise. The likelihood of a definition being required is seriously
