Stopping a SLAPP
A SLAPP (Strategic Lawsuits Against Public Participation) is the abuse of the litigation process to stifle legitimate freedom of expression. SLAPPs have been described 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”. Unlike genuine defamation claims that arise from an attempt to protect or repair a damaged reputation, typically used by the super-rich or large corporations, SLAPPs often use defamation and privacy-based claims as a weapon to stop legitimate reporting and investigation. The case is not bought with a view to obtaining damages for a loss or even winning, its purpose is to shut down criticism and be a gag. SLAPPs can cost heavily in both time and money, especially where the case is bought against an individual who then has to fund their legal costs.
Balancing the rights that safeguard reputation against potential manipulation and misuse of those rights is subject to much debate. SLAPPs have been scrutinised recently due to high profile law suits against British journalists, such as the one bought by an author of a book about the Russian leader, Putin. Both the author and her publisher were sued by multiple Russian billionaires. The claims were subsequently settled or withdrawn. High profile in the media presently is Greenpeace International’s use of EU anti SLAPP legislation in connection with a lawsuit brought against it and other defendants for $300 million in connection with the Dakota Access Pipeline by US based oil companies.
Unfortunately, whether a case is in fact a SLAPP is not always simple. When a libel claim was bought by pro-Brexit Arron Banks against a journalist Carole Cadwalladr many observers said it was a SLAPP. Ms Cadwalladr accused Mr Banks of having a secret relationship with the Russian government. She relied on the public interest defence and was successful at the High Court, but the Court of Appeal held Mr Banks should receive libel damages. The High Court did not agree that the case was a SLAPP. It was not a baseless legal claim because Ms Cadwalladr’s defence of truth failed, her defence of public interest only partially succeeded and Mr Banks received a damages award.
These cases highlight the potential subjectivity around SLAPPs. The Economic Crime and Corporate Transparency Act was the first piece of legislation in the UK to specifically address SLAPPs. As a result of this legislation the procedural rules for civil cases will be amended to insert a new way to strike out a case (which involves bringing the case to an early end without a trial) where the court considers that (a) it is a SLAPP within the statutory definition and (b) is less than likely to succeed at trial. However, this legislation only does so in the context of economic crimes.
A bill however been proposed to broaden the scope of the protection but is yet to make its way through Parliament. In the meantime, the legal profession needs to be alert to key behaviour indicative of a SLAPP. This can include unduly aggressive, intimidating and mislabelled correspondence, communications that are repetitive or disproportionate in length or volume, claims that are vague and unsubstantiated, the pursuit of unnecessary applications or making inappropriate or excessive requests. Solicitors are obliged by their regulator, the SRA, not to engage in such conduct. The first proceedings at the Solicitors Disciplinary Tribunal over an alleged SLAPP began in July.
Despite a lack of specific legislation for SLAPPs in defamation cases there are ways to exercise control and get judicial intervention. For example, earlier this year the High Court in Northern Ireland struck out a claim because it found it amounted to a SLAPP (Kelly v O’Doherty [2024] NIMaster 1). The Court commented that “the abuse of process in this case is so blatant that it would be utterly unjust if the court were to allow the proceedings to continue”. Likewise, experienced litigators in England and Wales, will proactively use professional regulatory guidance, the courts’ wide case management powers and the existing Civil Procedural Rules to help bring a SLAPP to an early end.
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