SLAPPs

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 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 greater should the government decide to go down the route of legislation. So, my sense is that we will need to agree on a definition and/or we may have to challenge the definition that the government chooses. I would prefer to be ahead of the game on this issue.

What are the other issues that SLAPPs critics have identified?

1. Aggressive behaviour by those using SLAPPs in challenging those they target whether by themselves or by their lawyers. This can be pre-action and can take many forms such as social media, formal letters before action and other methods such as attacking the intended Defendant, monitoring their movements, interfering with their communications, attacking/threatening their employers.

2. Legal firms that represent claimants in SLAPPs cases are providing their clients with aggressive litigation tactics which further the aim of the claimant to shut down criticism or to avoid their client being held to account.

3. Whilst the perception may be that wealthy individuals are the main users of this type of litigation the reality is that whistleblowers are also consistently attacked using similar tactics. Despite the Public Interest Disclosure Act 1998 which made it unlawful to subject workers to negative treatment or dismiss them because they have raised a whistleblowing concern, 64% of those who sought advice from Protect, a whistleblowing charity, said they had been victimised, dismissed or forced to resign and all complained that they were “priced out of justice” by well-resourced NHS trust lawyers who at public expense “deploy a menu of tactics” to defend cases including triggering satellite litigation to strike out claims as a means to drain the resources and by threatening six-figure costs applications”. These tactics were described in Parliament as a “grotesque spectacle” of the NHS “deploying expensive QCs to defeat a junior doctor who raised serious and legitimate patient safety issues”.

4. Whistleblowers frequently find themselves engaged in employment litigation and critics argue that the employment tribunal judges failed to curb oppressive acts of employers including hospital trusts. Additionally, proceedings before Employment Tribunals are not recorded nor are official transcripts provided which should be done to improve fairness.

5. Those cases that do appear before the court involve extensive cross examination described by one journalist, Carole Cadwalladr, as “the most silencing experience of my adult life. The most powerless. My cross-examination the most brutal and aggressive my solicitor said he had ever seen. It felt like abuse. Because it was.”

6. We should not forget that “SLAPPs can be effective in gagging critics: they take advantage of the prohibitive costs and time that it takes to litigate a case, and can result, (in some jurisdictions), in prison sentences and other harmful physical, financial and psychological impacts on defenders. As importantly, they have a chilling effect on free expression, disrupt legitimate collective action to defend the rights of workers and communities.”

7. The book “Putin’s People” attracted a series of SLAPPs by very rich men who filed suits against the author, Catherine Belton, and her publisher HarperCollins. They included Roman Abramovich, banking tycoons Mikael Fridman and Petr Aven, the metals magnate Alisher Usmanov and the Russian oil giant company Rosneft. Such litigation goes hand-in-hand with building a reputation for such people or companies by philanthropy and thus creating a reputation which they then seek to defend against assertions of illegality and criminality in the way in which their money was generated. This in turn involves companies that specialise in creating and managing reputations for such people. Many of them have been identified as complicit in money laundering.

8. The Supreme Court by a majority of 3 to 2 ruled that Boris Berezovsky and an associate who both lived and worked in Russia could sue Forbes, a US magazine, in UK courts over an article entirely concerned with their rise to power and their business methods in Russia. There was no English connection in the article which was written in an American magazine in an American-style and wholly connected with matters in Russia and, but for a handful of copies which were sent to the UK, would not have enabled the plaintiffs to forum shop for the best outcome. Forbes’s lawyer, David Hooper said: “London has become known as a town named Sue – a place where you can launder your reputation on the basis of a few sales in the UK of some overseas publication”.

9. As the majority of such actions never materialise in actual litigation, they are conducted in the pre-litigation phase. They are “legal actions that are taken not necessarily with the goal of winning in court, but which instead aim to intimidate, to induce fear, to tire and consume the financial and psychological resources of the target.”

10. SLAPPs inhibit the exercise of human rights such as freedom of expression by the threat or actuality of litigation. “Human rights defenders, individually and collectively as part of their organizations, movements and communities, play an essential role in sustainable and rights-respecting economic development. They are at the forefront of protecting our environment, the health and safety of their communities, and human rights. Human rights defenders are not anti-development, but they are often painted as such and face a range of attacks for the mere reason of speaking out. Business actors are often involved with these attacks, which in some parts of the world include killings, beatings, threats, judicial harassment, and other forms of violence. The criminalization of defenders and judicial harassment – a range of legal tactics used by states and business actors to violate the rights of defenders – is a growing problem worldwide...It is extremely concerning how SLAPPs have become a staple in the manipulation of the judicial system by business actors to stop legitimate human rights work, restrict civic space, and repress dissenting voices. SLAPPs drain the resources of defenders, take time away from human rights defense, and can intimidate others from engaging in legitimate human rights work.”

11. SLAPPs constitute “an important trend to pay attention to, as the world increasingly tries to reckon with the notion that any business can be a force for good or evil depending on how it’s led and engages with civil society writ large. Protecting these defenders’ freedom of expression and association is vital to our democracies, transparency in markets, and protection of workers and communities,” and includes critical recommendations for investors, businesses, law firms, and policymakers alike.”

12. “In South Africa, although there is no anti-SLAPP legislation, the High Court (Western Cape Division, Cape Town) recently dismissed a series of defamation lawsuits brought by the Australian mining company Mineral Commodities Ltd (MRC) and its local subsidiary against six environmental activists as an abuse of the legal process. The Court accepted the defendants’ arguments and stated “corporations should not be allowed to weaponize our legal system against the ordinary citizen and activists in order to intimidate and silence them”. The Court also argued that SLAPPs represent an abuse of the judicial process and undermine the fundamental notions of justice. This decision shows courts have the power to protect defenders from this type of abusive litigation even in the absence of explicit anti-SLAPPs laws.”

13. “SLAPPs go against the values on which the EU is founded, including democracy, the rule of law and respect for human rights. But SLAPPs have a broader, detrimental impact on the EU legal order. By impairing public watchdogs from doing their job, SLAPPs are a threat to the effective enforcement of EU law and hinder the effective legal protection of rights under EU law. As SLAPPs distort and abuse judicial remedies, they may also undermine the trust between the EU member states’ legal systems, posing a threat to access to justice and judicial cooperation. SLAPPs are also a threat to the freedom of movement as they discourage potential targets from confidently operating in jurisdictions where the risk of such abusive litigation is higher than elsewhere in the EU.”

14. “Britain has long had a reputation for plaintive-friendly libel laws, and despite reform efforts in the past decade, the country has remained an accommodating home away from home for Russia’s robber barons.” The war in Ukraine shone, for them, and unwelcome light and changed public perception of this behaviour because previously reporting the history of such men and companies, who earned their fortunes by aligning themselves with Mr Putin, could be financially ruinous through the use of SLAPPs.

What options do we have other than legislation?

SLAPPs operate through the litigation process whereby the outcome is generally of less importance to the Claimant. As such, anti-SLAPP measures need to be introduced to ensure this process causes as little harm to the victim as possible. This could mean:

Consideration should be given to any appropriate amendments to the Pre-Action Protocol for all defamation claims.

Changing the burden of proof so that the Claimant has to prove the claim and not requiring the Defendant to prove that the claim is not libellous (as is the case in the US).

Requiring Judicial permission to initiate litigation such as currently exists in relation to Judicial Review under Order 53.

A clear requirement in the Rules identifying the information and detail that an Applicant for Consent must include in the Affidavit in support of the application. That must include the nature of the defamation alleged, as well as identifying the intended Defendants and specifying/exhibiting all communications by whomsoever, whether by notes of conversations, postings on social media, letters written to the intended Defendant and any other individual or organisation in relation to the alleged defamation, as well as any attempts to settle the dispute, whether without prejudice or not, so that the court can see the character of the pre application behaviour and assertions. Without this it will be very difficult for the Court to identify potential SLAPP litigation.

An application for Consent would also enable the Court to identify any libel tourism at an early stage.

If Permission is granted, the burden of proof should continue to be on the Claimant to prove the allegation throughout the proceedings;

There should be an opportunity for early hearing to enable the Defendant to argue that this is SLAPP litigation, and this should also be with the requirement for the Defendant to provide full information as indicated above in the Affidavit in support of the Defendant’s case.

Accelerated proceedings that can filter out SLAPPs as quickly as possible;

Sanctions in costs to punish SLAPP litigants and deter further SLAPPs;

Legal Aid/Financial support and compensation to enable SLAPP Defendants to fight claims on an equal footing (equality of arms) without being drained of resources and morale in the process.

However, experience shows that the majority of SLAPP behaviour never results in litigation being initiated but the consequences for the journalist or whistleblower can be just as financially ruinous. Adjusting the litigation system will not tackle this particular method of SLAPPs legal action. For that to happen there must be a change in the ethics governing the conduct of litigation and prelitigation behaviour. A highly critical Report on the use and impact of SLAPPs was published by the Foreign Policy Centre, a thinktank, and the freedom of expression organisation ARTICLE 19. The Solicitors Regulation Authority (SRA), Bar Standards Board and other legal regulators need to do more to deal with SLAPPs because they are undermining the profession’s reputation, the Report argued. It has also urged lawyers to ensure they are meeting high ethical standards when threatening journalists with legal action.

The report says: “Therefore many, if not most, instances of SLAPPs do not reach the courts – and as such do not receive the public attention a court hearing provides. If journalists and media outlets feel they have no choice but to give in and accept settlements, for fear of losing a case in court and then facing costs that could bankrupt them, then there is normally no public record at all. Moreover, pre-emptive legal intimidation can be an effective strategy to stop information from being published in the first place. This chapter explores how and why this is happening through examples that have made their way into the public domain and helped to provide insight into this ‘hidden process’.”

The report also says: “The use of overblown language, threatening tone and outlandish demands for redress were a common theme raised by journalists and media defence lawyers spoken to as part of the research for this report. Clare Rewcastle Brown, the journalist who had been instrumental in uncovering the Malaysian 1MDB scandal (see page 22), gave evidence to the House of Lords alongside Wild. She was keen to stress how much this legal intimidation “is actually pre-action litigation that people do not hear about”.

Lawyers who act in vexatious litigation should be sanctioned by their professional bodies, The Business and Human Rights Centre a rights charity has said, warning that ‘abusive’ legal tactics are on the rise. SLAPPs have become ‘a staple in the manipulation of the judicial system by business actors to stop legitimate human rights work, restrict civic space, and repress dissenting voices’. Regulators of lawyers “should update their ethics codes to ensure SLAPPs are a sanctionable offence, stipulating that lawyers who use ‘abusive tactics’ will face sanctions. It adds that lawyers should undertake rigorous due diligence to ensure the cases they take on are not SLAPPs and refrain from representing companies in such litigation.”

It remains to be seen what the MoJ will do with the submissions it has received and whether any meaningful action will be taken to stop this abuse.

Alastair Logan OBE., LL.B.,

Council Member for the Surrey Constituency

1. https://humanrightshouse.org/articles/the-eu-has-a-key-role-toplay-in-protecting-journalists-and-right-defenders-from-slapps/

2. Between 2019 and 2021, CASE collected data from its members and from other civil society groups on apparent SLAPPs filed between 2010 and 2021, which led to the identification of 539 verified SLAPP cases across Europe.

3. Tobitt, Charlotte (24 January 2022). “SLAPP down: David Davis says Putin’s People libel case cost ex-FT journalist £1.5m”. Press Gazette.

4. https://www.thetimes/article/nhs-whistleblowers-still-faceconsequences-kl6mqtld0

5. Tweet by Carole Cadwalladr

6. https://www.business-humanrights.org/en/big-issues/ corporate-legal-accountability/materials-on-slapps/

7. https:// theguardian.com/world/2000/may/15/law.claredyer

8. https://fpc.org.uk/the-increasing-rise-and-impact-of-slappsstrategic-lawsuits-against-public-participation/

9. https://www.business-humanrights.org/en/big-issues/ corporate-legal-accountability/materials-on-slapps/

10. Mary Lawlor, UN Special Rapporteur quoted in the BHRC Report https://media.business-humanrights.org/media/ documents/2021_SLAPPs_Briefing_EN_v51.pdf

11. Business and Human Rights Centre (BHRC) Report

12. Business and Human Rights Centre (BHRC) Report

13. https://humanrightshouse.org/articles/the-eu-has-a-key-role-toplay-in-protecting-journalists-and-right-defenders-from-slapps/

14. https://fpc.org.uk/publications/london-calling-the-issue-oflegal-intimidation-and-slapps-against-media-emanatingfrom-the-united-kingdom/