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Friday, December 1, 2023

Being branded a SLAPP!

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There continues to be great debate surrounding proposals to tackle SLAPPs. This article discusses what SLAPPs are, and the inherent issues that regulatory attempts to tackle SLAPPs create for specialised Media & Privacy lawyers.

What are SLAPPs?

SLAPP stands for ‘Strategic Lawsuit Against Public Participation’.

The Solicitors Regulation Authority (SRA) describes a SLAPP as a type of “abusive litigation” whereby lawyers bring proceedings (or threaten to) with the aim of discouraging someone who publishes or speaks openly on a matter perceived as being in the public interest. The term came to prominence during the invasion of Ukraine. SLAPPs have been the subject of intense parliamentary debate and scrutiny. Conservative MP David Davis described the use of SLAPPS as “lawfare” back in January 2022.

What does the SRA have to say?

The SRA issued a warning notice on 28 November 2022, which you can read here https://www.sra.org.uk/solicitors/guidance/slapps-warning-notice

The SRA state that SLAPPs “prevent publication on matters of public importance, such as academic research, whistleblowing or campaigning or investigative journalism”.

In this warning, the SRA set out 3 ‘red flags’ for solicitors to identify a SLAPP, in which they should then advise their client against pursuing an action.

  • The publication is a subject of public importance, such as academic research, whistleblowing or investigative journalism;
  • Solicitors are acting solely in a public relations capacity, for example by responding to pre-publication correspondence with journalists about a story which is true and does not relate to private information; and
  • The client asks to target individuals, where a corporate defendant would be more appropriate/available. The claim is brought under multiple causes of action, or an unconnected jurisdiction.

The Warning Notice has received some support; on the 24 April 2023, the CEO of the Legal Services Board, Matthew Hill, made a speech in which he stated that “the aim would be, based on the evidence, to build on the warning notice already issued by the SRA…strengthen it and extend those principles across the whole sector”.

However, it also raises some important questions:

  1. Does it unfairly dismiss a media and privacy lawyer’s ability to advise their clients appropriately and based on their specialist experience?
  2. Is it necessary given that Defendants can rely on various different defences provided by the Defamation Act 2013? For example, a Defence of Truth under Section 2; a Defence of Honest Opinion under Section 3; a Defence of Public Interest under Section 4? Or that the publication is contained in a scientific or academic journal under Section 6?
  3. What about a person’s right to obtain legal advice freely and when they want to?
  4. What about legitimate cases being branded a SLAPPs? Is it becoming an easy accusatory term by Defendants to a libel action? This poses considerable difficulties for media and privacy lawyers representing claimants in defamation and privacy cases.

Justice Steyn made exactly this point in the case of Banks v Cadwalladr [2022] EWHC 1417 (QB), addressing the issue early on in their judgment:

Ms Cadwalladr has repeatedly labelled this claim a SLAPP suit, that is a strategic lawsuit against public participation, designed to silence and intimidate her. I have set out a summary of my conclusions in paragraph 416 below. Although, for the reasons I have given, Mr Banks’s claim has failed, his attempt to seek vindication through these proceedings was, in my judgment, legitimate. In circumstances where Ms Cadwalladr has no defence of truth, and her defence of public interest has succeeded only in part, it is neither fair nor apt to describe this as a SLAPP suit.” (see para 9)

Justice Steyn appears to state here, that in the absence of any Defence by a Defendant, it would seem inconceivable to accuse a Claimant’s case of being a SLAPP.

Any sensible lawyer would likely choose to sue a corporate entity if the option was available rather than an individual, given that they are more likely to be able to recover damages. A Defamation claim will never succeed unless the Claimant can prove that they have substantial connections to the jurisdiction, whether that be where the publication was made, where the considerable readership is located, or where the defendant or claimant resides.

Economic Crime and Corporate Transparency Bill: Early Dismissal Mechanism

Last July Dominic Raab, the then Justice Secretary, proposed a 3-part test to identify a SLAPP, but it was never passed. Amendments will be made to the Economic Crime and Corporate Transparency Bill, which you can access here- https://bills.parliament.uk/bills/3339

This won’t apply to all cases, only those that relate to economic crime.

If successful, Judges will apply a new 2-stage test to determine if a case is a SLAPP:

  1. Is the case a SLAPP according to the definition set out in the bill?
    • The claimant’s behaviour intends to restrain the Defendant’s exercise of the right to freedom of speech;
    • The information that would be disclosed relates to economic crime;
    • The disclosure is made in the public interest or for the purpose of preventing economic crime;
    • The behaviour of the claimant intends to cause the Defendant harassment, alarm, distress, expense, or any other type of harm or inconvenience;
    • The behaviour of the claimant intends to cause harm to the defendant beyond that ordinarily encountered in the course of properly conducted litigation”.
  2. Does the claim have a reasonable chance of being successful? The burden will fall on the Claimant to prove this.

The bill is currently at the Report stage in the House of Lords, return here for updates on its progress! For more information on our various services see HERE

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