Government response to Future of News Inquiry is a SLAPP in the face
24/02/2025
There’s nothing new about the threat posed by SLAPPs (Strategic Lawsuits Against Public Participation), a means by which the super-rich can exert significant financial pressure on an author or publisher such that they are forced to back down from covering, or retract, a story for fear of ruinous legal proceedings being issued if they refuse to comply.
Back in July 2022, one of our colleagues wrote about a glimmer of hope sparked by a press release issued by the then Government, outlining plans to end the use of SLAPP litigation to silence authors and the media, by way of a mechanism which would “allow the courts to throw out baseless claims quicker and [place] a cap on costs to prevent the mega-rich such as Russian oligarchs, from using expensive litigation as a weapon to silence their critics”.
At the time whilst there were questions around how the proposals might work in practice, and what the likely timescales for implementation might be, in general this was seen as a positive step for publishers – something very much to be welcomed.
Fast forward a few years to earlier this month where, following the publication of its response to the House of Lords Future of News inquiry, a spokesperson confirmed that the current Government, whilst committed to upholding justice and preserving investigative journalism and free speech, “does not intend to legislate further in the current parliamentary session” against SLAPPs.
In its report, the Communications and Digital Committee was critical of the Government’s approach thus far, highlighting that “viable legislative options and precedents exist” and suggesting that the failure to tackle this issue could be attributed to a lack of “political will”.
Prior to the surprise general election called last year by former Prime Minister Rishi Sunak, an anti-SLAPP Private Members’ Bill had been making its way through Parliament. The Bill had support from the media industry, as well as the Government. At the time, changes had been tabled concerning the need for courts to make subjective judgment regarding the intent of a Claimant, and for refinements to the definition of the public interest.
In its response to the committee’s report, the Government said that focus in relation to any future action concerning SLAPPs now falls upon making sure that an “appropriate balance is struck between the rights to access justice and free speech”.
In practice, the issue of SLAPPs is one that is becoming ever more common. This is something that a few years ago was relatively unusual whereas today, my colleagues and I are currently assisting several publishing clients who have received aggressive and unjustified letters that each bear all the hallmarks of a typical SLAPP communication.
In all of these cases, we have had detailed conversations with editors and managers about the merits of the complaints received (or more commonly, the lack thereof) and, crucially, about the serious financial implications for them if attempts to fend off the claim didn’t end up going their way.
In every case, the threat of a SLAPP takes the decision to publish a story away from being one of freedom of expression and public interest, to instead primarily becoming a financial balancing exercise. In the current budgetary climate we all find ourselves in, it doesn’t take a genius to work out what the almost inevitable conclusion to these complaints must be. The question is, where is the freedom of expression in that?
To rub salt into the wound, on the very day of the government’s announcement, at least one regional editor somewhere in the UK received a baseless threat which had all the hallmarks of a SLAPP. And it’s no consolation at all that the threat came from a well known domestic financial institution rather than a Russian oligarch.
So what’s to be done? Well, if the government won’t legislate to prevent SLAPPs, how about looking at the lawyers? After all, since 2022, it has been professional misconduct for a solicitor to become involved in a SLAPP, which the Solicitors Regulation Authority describes as “a misuse of the legal system”.
It’s worth quoting the SRA’s key messages to solicitors and law firms verbatim:
- You must not bring or threaten unmeritorious claims or engage in tactics that are intimidatory or otherwise oppressive;
- Your duty to act in your client’s interest must be balanced with your wider professional obligations, including your duty to the courts and to uphold the rule of law, which take precedence should these come into conflict;
- You should identify proposed causes of action or behaviours which comprise a SLAPP or abuse of the litigation process, and decline to act in this way;
- Particular care is required where a publication ventilates a matter that is likely to engage the public interest.
What could be clearer?
Apparently, the SRA is investigating a number of solicitors for allegedly breaching these principles, and I happen to know that last December, a regional title made just such a complaint to the SRA. Will this latest incident result in yet another complaint to the regulator? We shall see.
The obvious and undeniable Government u-turn regarding SLAPPs is disappointing, to say the least, and raises grave concerns for all those involved in the business of publishing. We can only hope that this failure to act does not, as the committee has suggested, lead to irreparable damage to the industry.
In the meantime, will the SRA prove to be a viable alternative to legislative attempts to restrict the scourge of SLAPPs? Possibly, but it’s a long and uncertain process, and only time will tell.