How to Stop (and Spot) a SLAPP

Lucille Reece*

The “SLAPP” is ambiguous. The acronym evokes mental imagery of a swift, merciless strike to the face, rather than that of a particularly aggressive form of civil litigation. While the term "SLAPP" may be unfamiliar to most, the hallmarks of such lawsuits will be recognised by many. SLAPP, a term first coined by University of Denver Professors George W. Pring and Penelope Canan in the 1980s, stands for "Strategic Lawsuits Against Public Participation" and is a useful designation for civil claims that, at their essence, have the effect of unduly silencing those who have contributed to public discourse.

The typical SLAPP will involve the retaliatory use of litigation by powerful individuals or corporations against weaker opponents with the intent of stemming the source of negative publicity. Commonly, SLAPPs will target journalists, environmentalists, and academics. The SLAPP plaintiff will often intend to burden the defendant to the extent that they, and others who share their views, abandon their opposition and are deterred from voicing criticism in future.

An oft-cited example of a SLAPP is the “McLibel” litigation of the 1990s, where McDonald’s Corporation brought libel claims against two environmental activists who had handed out a few dozen leaflets that were critical of the company. While the pair were ultimately found to be guilty on some counts, the case became emblematic of the David and Goliath power imbalance inherent in SLAPPs – at the time, McDonalds was valued at over US $30 billion, while one defendant was a part-time bar worker, and the other unemployed.

A more recent – and chilling – example is that of Daphne Caruana Galizia, a Maltese investigative journalist who was assassinated in 2017. At the time of her death, Galizia was facing over 40 libel suits in relation to her reporting on corruption within the Maltese government and, most famously, the Panama Papers.

At their worst, SLAPPs can generate significant financial and psychological distress for defendants, and chill the speech of third parties due to fear of the cost of defending a claim. Consequently, these lawsuits can have worrying implications for free speech and public engagement, and have prompted various jurisdictions to legislate against the phenomenon. Anti-SLAPP legislation can now be found in the United Kingdom, over 30 US states, the Australian Capital Territory and two Canadian provinces.

SLAPP-spotting is no simple task as there is no universally-accepted criteria against which lawsuits can be compared to determine whether they are indeed a SLAPP. As such, legislative definitions of the term vary between jurisdictions. However, the lawsuits generally tend to feature certain key characteristics, which include but are not limited to the following: the lawsuit limits the defendant's exercise of the right to freedom of expression, the expression targeted by the lawsuit relates to a matter of public interest and the claim is instigated by a party whose primary intent is to intimidate and silence the defendant.

While defamation claims are the most popular causes of action for SLAPP plaintiffs, the lawsuits can take any form. Other commonly utilised causes of action include copyright infringement, nuisance and breach of contract, to name a few. The SLAPPer will often be indifferent as to whether they actually win the dispute, as their overarching motive will often be to shut down the source of criticism by financially and psychologically draining the defendant, whatever the outcome.

The expression targeted by SLAPPs may have political elements, but this is not a prerequisite. Any kind of expression that is met with a vexatious lawsuit may attract the SLAPP label – for example, a Texas couple was sued by a pet-sitting company for US $1 million after they left a negative online review about the company's $5 dog-sitting fee.

To minimise the financial burden on defendants, antiSLAPP legislation is crafted to strike out SLAPPs at any early stage. In general, anti-SLAPP provisions allow courts, on application by the defendant, to strike out claims before trial where it is established that the defendant’s expression related to a matter of public interest, and that the plaintiff’s claim is without sufficient merit. For example, Ontario's anti-SLAPP law places the onus on the defendant to first show that the proceeding arises from an expression that relates to a matter of public interest, and then requires the plaintiff to demonstrate that their claim has merit.

While various US and Canadian states have had antiSLAPP legislation for some time, there has been a recent flurry of SLAPP-related legislative activity in the United Kingdom and Europe. In 2021, a study commissioned by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs found there was a "significant need for legislative intervention” following a rise in intimidatory lawsuits across the continent. In June 2023, the European Council of Ministers agreed on a general approach to a draft anti-SLAPP directive focusing on the protection of journalists and human rights defenders.

In October 2023, the United Kingdom enacted the Economic Crime and Transparency Act 2023. While the Act is primarily concerned with tackling economic crime through amendments to the Companies Act 2006, sections 194 and 195 of the Act establish the United Kingdom’s first anti-SLAPP regime. These sections target SLAPPs relating to the disclosure of information relating to economic crime. This reform came in response to mounting pressure on the UK government to act decisively against oppressive lawsuits, particularly due to concerns that Russian oligarchs had been deploying aggressive litigatory tactics to suppress investigations into their affairs.

In his foreword to the United Kingdom's 2022 Call to Evidence which preceded the Act, Deputy Prime Minister Dominic Raab issued an impassioned warning against the dangers of SLAPPs, and decried those seeking to exploit the legal system to muzzle free speech. While the Act’s strike-out mechanism is limited to expressions relating to economic crime, UK Ministers have lauded the reform as a heroic new measure that will bring about a swift end to the abusive lawsuits in the jurisdiction.

A claim will be a SLAPP under the UK Act and therefore vulnerable to being struck out under section 194 if the defendant establishes that the plaintiff’s behaviour in relation to the proceedings must restrain, or have the effect of restraining, the defendant's exercise of the right to freedom of speech; the information that would be disclosed by the exercise of that right relates to economic crime; the defendant has disclosed the information to assist in combating economic crime; and the plaintiff’s behaviour is intended to cause the defendant harassment, expense or inconvenience. However, establishing that the claim is a SLAPP will not be sufficient to see the claim struck out. Under section 194(2), the Court must also be satisfied that the claimant has failed to establish that the claim is more likely than not to succeed at trial.

As we await judicial application of the United Kingdom’s new anti-SLAPP law, the effectiveness of these provisions remains uncertain. While UK civil society groups have generally welcomed the reform, many have expressed concern that its protections do not extend to all forms of public interest speech due to the Act’s focus on economic crime. However, further SLAPPbased reform may be on the horizon for the UK, as the Government has been working with EU bodies to bolster anti-SLAPP measures across the continent.

While it is widely agreed that SLAPPs constitute an abuse of court processes and can unduly impede public discourse, there is less consensus as to how they should be legislated against. Of course, where there exist procedural mechanisms to strike out lawsuits that supposedly threaten free speech, therein lies a risk of inordinately impeding access to justice - another fundamental human right. This risk is heightened by the fact that SLAPPs are difficult to accurately identify, as both parties may be able to bring convincing arguments as to whether the claim should proceed. Requiring plaintiffs to demonstrate the merit of their claim at an early stage – sometimes even before discovery has concluded – is an onerous demand. The task for legislators then, is to develop anti-SLAPP laws that successfully halt intimidatory lawsuits contrary to the public interest, while ensuring the provisions are not so broad that they prevent parties from bringing genuine claims.

SLAPPs are an intriguing phenomenon as they involve a complex interplay between individual freedom of expression, the role of the Fourth Estate and the preservation of access to justice. While it may be easy to debate whether any particular lawsuit deserves the SLAPP label, it is harder to argue with the notion that plaintiffs should not enjoy unbridled access to courtbased relief, especially where their doing so will have the effect of disproportionately stifling free speech. Effective anti-SLAPP strike-out mechanisms should level the playing field in an environment that invariably favours those with greater resources, while still allowing good faith plaintiffs to have their day in court. Getting this balance right, while challenging, is critical.

* Having been admitted to the bar in September 2023, Lucille Reece practices as a commercial property lawyer at Bell Gully’s Auckland office. Her 2021 LLB(Hons) dissertation on SLAPPs was recently cited by the Employment Court of New Zealand in Halse v Employment Relations Authority, marking one of the first times the term has been used by a New Zealand court.