The recently published government response to a call for evidence on Strategic Lawsuits Against Public Participation (SLAPPs), describes them as “proceedings which often feature excessive claims” which “aim to prevent information in the public interest from being published”.
In simple terms, SLAPPs are legal actions that are strategically taken, with not necessarily the main objective to be successful at court, but usually with an ulterior motive aimed to intimidate, harass, to induce fear and to consume the financial resources of the Defendant. Due to their nature, SLAPPs are usually commenced by influential and wealthy individuals or powerful companies, with their targets including journalists, human rights activists, academics and anyone else who expresses an opinion on a public matter that brings any negativity for these elite individuals and companies. Normally, the desired outcome for bringing such legal action is to silence these alleged negative voices, with the benefit of the legal actions usually remaining anonymous and private.
However, it is certainly worth noting what is meant by ‘Public Participation’. According to a recent Ministry of Justice paper, “public participation can include academic research, journalism and whistle-blowing activity concerned with matters of societal importance, such as illicit finance or corruption”.
One of the most notable examples of a SLAPP claim is the recent use by Russian Oligarchs to intimidate journalists in the wake of the Russian invasion of Ukraine. On 20 July 2022, the Deputy Prime Minister, Dominic Rabb announced that the courts would be given additional powers to protect free speech, which would include a new three-part test that is claimed will “help spot and strike out meritless cases more quickly”. The stages of that test are as follows:
- Is the case against an activity in the public interest?
- Is there evidence of an abuse of process, such as the claimant sending a “barrage of highly aggressive letters on a trivial matter”?
- Does the case have sufficient merit? Specifically, does it have a realistic prospect of success?
In addition to this test, the government will also seek to introduce a costs protection scheme that will attempt to level the playing field in these somewhat David and Goliath legal actions, and avoid what it describes as “the threat of endless legal action and associated costs – sometimes totalling millions of pounds – to muzzle one’s opponents under defamation and privacy laws”. Initial suggestions seem to be focused on capping costs so that Defendants with less deep pockets than these elite individuals and companies can properly defend meritless cases; a process that will be undertaken in consultation with the Civil Procedure Rules Committee.
It is said that necessity is the mother of invention, and it has always been the case that war expedites change, therefore it seems that the conflict in Ukraine will not be an exception to the rule. The use, and arguably the abuse of existing defamation and privacy laws by Russian Oligarchs has focused the government’s resolve, and seems to have acted as the catalyst for a change in the law that one might argue has been a long time coming.
As the government’s call for evidence pointed out, the ability to bring or defend defamation claims, “was historically limited to the wealthy, or those who could get lawyers to act for them without cost”. The proposed legislation may act as a leveller and facilitate greater access to an area of law that has previously been out of reach for most people. It remains to be seen, however, whether these proposals will come to fruition.