The government has been under increasing pressure to legislate on concerns that strategic lawsuits against public participation (SLAPPs) are being used by wealthy individuals to stifle free speech and deter investigations into their affairs.

The inequality of arms can be exploited easily by the wealthy; perhaps most disturbing has been the growing use of these to stifle legitimate and important genuine comments.

Amendments in respect of SLAPPs have been added to the Economic Crime and Corporate Transparency Bill, which is currently making its way through Parliament. It is hoped that these amendments will bring an end to the majority of SLAPPs brought before the UK courts.

What is a strategic lawsuit against public participation?

Strategic lawsuits against public participation (SLAPPs) are lawsuits designed to silence people speaking out on issues of public interest. SLAPPs can be 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. Journalists, academics, and campaigners are often on the receiving end of a SLAPP but there is a worrying trend in SLAPPs being used against individuals outside of these professions.

These actions are typically initiated by reputation management firms and the super-rich to stifle legitimate reporting and debate. Even before issue of proceedings, SLAPPs are intensive in terms of pre-action correspondence and epitomise ‘litigation by letter’, an expensive and unenviable position for those who are not on an equal footing financially to battle the seemingly bottomless pockets of the ultra-rich.

SLAPPs are typically framed as defamation or privacy cases brought by individuals or corporations to evade scrutiny in the public interest and come with sky high costs and damages. SLAPPs pile on the pressure until investigations into corruption are shut down, and some individuals or corporations are regarded as ‘no go’ zones, because of the risk of legal retaliation. At their worst, SLAPPs, threaten freedom of speech which is a fundamental tenet of democracy.

Government consultation

In March 2022 the UK government requested an urgent call for evidence in response to the challenges presented by SLAPPs, with the result of the consultation concluding that they are “moving decisively to stamp out SLAPPs”.

What are the proposed legislative changes in the UK?

According to the government website, at the heart of the reforms is a new statutory early dismissal process to stop SLAPPs in their tracks – allowing judges to throw out claims that lack merit. This will include a three-part test – with clear criteria to help courts determine whether a case is a SLAPP:

  1. It will assess if the case is against activity in the public interest – for example investigating financial misconduct by a company or individual.
  2. It will examine if there’s evidence of abuse of process, such as whether the claimant has sent a barrage of highly aggressive letters on a trivial matter.
  3. It will review whether the case has sufficient merit – specifically if it has a realistic prospect of success.

Where relevant cases are identified and do not meet the merit test, they will be thrown out.

What is the latest position in Europe?

The Council of the European Union has also recently announced that the EU Member States have reached a common position on a draft directive that will give individuals numerous safeguards and protections, including potential financial security and early dismissal:

  • Early dismissal – A judge may decide to dismiss a claim as manifestly unfounded at the earliest possible stage in the proceedings.
  • Financial security – A court can decide to require that the claimant provides security for the costs of the proceedings.
  • Costs – A court can decide that the claimant must bear the costs of the proceedings, including the costs of legal representation of the SLAPP victim.
  • Penalties – A court can decide to impose dissuasive penalties on the party who brought the proceedings, in the case of abusive court proceedings.

The EU approach is largely consistent with the line taken by the UK government in these cases.

How can we help?

If you are a victim of such a lawsuit and need help with defending your rights in respect of your privacy and reputation then we can help – contact our defamation expert Daniel Jennings today.

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Daniel is a highly regarded experienced specialist commercial litigator and defamation expert. He has acted in a variety of claims dealing with specialist defamation and privacy matters such as Al-Ko Kober Ltd & Anor v Sambhi [2017] EWHC 2474 (QB), obtaining creative and unusual solutions for clients.

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Published: 14th June 2023
Area: Litigation & Dispute Resolution

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