Government publishes proposals to end ‘SLAPP’ litigation
One consequence of the sanctioning of oligarchs following Russia’s invasion of Ukraine, has been to bring SLAPP litigation (the acronym for ‘Strategic Lawsuits Against Public Participation’) to the forefront of policy makers’ thinking.
SLAPPs have long been a problem for publishers, whose legal budgets are always dwarfed by those of the super-rich – and the resulting chilling effect on freedom of expression on issues of significant public interest is problematic, for obvious reasons.
The whole point of SLAPP Litigation is to enable “claimants” to exert enough pressure to leave the author or publisher with no choice but to back down from covering the story for fear of financial ruin if they resist. SLAPPs rarely ever see a courtroom.
Last week, Dominic Raab issued a press release outlining the government’s plans to end the use of SLAPP litigation to silence authors and the media, along with the government’s detailed response on the issue.
So, what are the proposals?
The new mechanism “to allow the courts to throw out baseless claims quicker and a cap on costs to prevent the mega-rich, such as Russian oligarchs, from using expensive litigation as a weapon to silence their critics” includes a three stage test.
The first stage of the test will allow the court to assess if the case is against activity which is in the public interest (e.g. investigating financial misconduct). Secondly, the court will look to see if there’s evidence of an abuse of process (for example, sending a barrage of aggressive legal letters in relation to a trivial matter). And thirdly, it will assess whether the case has a realistic prospect of success.
The press release goes on to state that “anyone subjected to a suspected SLAPPs case will be able to apply to the court to have it considered for early dismissal”.
It will be interesting to see what this will entail from a defendant publisher/author’s point of view. As any journalist who has ever been involved in litigation will know, making an application to a Court and producing supporting evidence can entail a great deal of work and expense . And will the application be dealt with at a hearing? If so, you can already see the legal costs mounting up.
The second part of the proposal is the introduction of “a new costs protection scheme to level the playing field between wealthy claimants with deep pockets and defendants”. Again, in theory this is undoubtedly a positive step, but the devil will be in the detail.
The next question is: what are the timescales for the changes to be brought in? The answer: we just don’t know.
The Government will consult the Civil Procedure Rules Committee and then set out the design of the costs-capping scheme, but the mechanism for the early dismissal of SLAPP cases will require statutory reform, which is rarely a quick and straightforward process, especially given the current political landscape domestically.
The government’s publication from last week also acknowledges that one of the main difficulties with the proposed reforms is setting the definition of “SLAPP litigation” – too wide a definition and claimants with genuine claims will be denied access to justice, and too narrow a definition and the changes will not prevent the stifling of freedom of expression on matters of significant public interest. A middle ground will, somehow, need to be achieved.
On a positive note, it is encouraging to see that the government recognises that this isn’t just an issue for traditional libel claims, but that it also applies to privacy, data protection and intellectual property claims, which can all be wielded menacingly against publishers by those with deep pockets and secrets to hide.
And in case you are thinking that this is a problem only for a few high profile newspapers or book publishers, think again.
A few months before Ukraine was invaded, my colleagues and I advised a large regional daily which faced a particularly unjustified libel threat from a Russian oligarch and his high profile lawyers. Their complaint? The title had published an article which was a fair and accurate summary of a debate in the House of Commons, in which several Honourable Members had been critical of the man in question. Never mind Parliamentary privilege. They were demanding an apology and the removal of the article from the web.
And going back a few years, another high profile Russian took exception to a report published by a daily in a different part of the country. My colleague had little discussion with the editor and MD about the merits of the complaint, and many detailed conversations with them about the financial implications if it all went wrong. The front page apology and payment of costs was the inevitable result.
These are how SLAPPs, or the threat of SLAPPs, operate in practice. Freedom of expression? Hardly.
It is obvious that the proposed changes will be a positive step for publishers, and are very much to be welcomed. But at the moment, significant doubt remains about how the proposals will work in practice, and about the timeline for their implementation.
The government needs to keep its eye on this issue, irrespective of any imminent political changes.