6th March 2024
Impress Insights: Further SLAPP legislation must include defamation protection and avoid past pitfalls

Dr Peter Coe: Further SLAPP legislation must include defamation protection and avoid past pitfalls

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The use of Strategic Lawsuits Against Public Participation (SLAPPs) are on the rise again. In fact, they have been on the rise for years now.

In its 2022 report the Coalition Against SLAPPs in Europe (CASE) found 570 SLAPP cases in 29 European countries between 2010 and 2021, noting an increase in the number of cases of 43.5% in 2019, 15.2% in 2020 and a slight decrease of 2.6% in 2021. Its 2023 report provides further evidence of this upward trend in the use of SLAPPs. It identified over 820 SLAPPs, compared with the 570 in the 2022 report. The data presented by CASE shows that journalists (30.2% of the lawsuits) and media outlets (24.7%) are most likely to be sued, followed by editors (11.9%).

The report identifies the UK as a SLAPP hotbed, and ‘forum of choice’ for would-be SLAPP instigators.

In light of these concerning statistics, you would expect the UK government would want to investigate, and then tackle the issue. In 2022 it seemed that this would happen, with the Ministry of Justice issuing a Call for Evidence on SLAPPs, which was quickly, and perhaps rather hastily, followed by the government’s Response to the Call for Evidence. Both the Call and Response focussed on defamation law as the SLAPP vehicle of choice. However, after this flurry of activity it all went rather quiet, until amendments to the Economic Crime and Corporate Transparency Bill (which became the ECCTA 2023 in October) were proposed to tackle SLAPPs that feature economic crimes – so you may have noticed, that suddenly, there were no defamation reforms in sight!

The limited scope of these provisions – in that they only relate to economic crime  and therefore will only apply to SLAPP claims being brought under defamation law where the claimant seeks to restrain the defendant’s comments about economic corruption, rather than tackling the broad use of defamation law as a preferred SLAPP vehicle – has, understandably, been the subject of criticism.

The government’s response to this is that: ‘at least 70% of the cases referenced in a report… were connected to financial crime and corruption’, that the Act ‘presents the earliest opportunity to pursue reforms that address a significant proportion of SLAPP activity featuring economic crime’ and that ‘the government is considering future legislative options to introduce comprehensive anti-SLAPP measures as soon as parliamentary time allows.’

The immediate and obvious issue with the scope of this regime is that it is out of step with what is happening across Europe. For example, in 2022 the European Court of Human Rights acknowledged the use of SLAPPs, recognising ‘the growing awareness of the risks that court proceedings instituted with a view to limiting public participation bring for democracy.’

More recently, in late 2023, the Council of Europe’s (CoE) Committee of Experts on SLAPPs submitted its Draft Recommendation on countering their use to the Council of Ministers for adoption in early 2024. The submission of the Recommendation was followed in January of this year by the CoE Parliamentary Assembly approving a Resolution urging member states to strengthen their anti-SLAPP legislation and to coordinate with each other to ‘combat’ SLAPPs. As a member of the Committee of Experts, I saw for myself the appetite from the CoE, and also from my colleagues representing other CoE member states, to create a comprehensive and robust Recommendation.

This is not what we have with ECCTA 2023.

Notwithstanding this fundamental issue with scope, the Act’s provisions themselves, and the government’s response, in my view at least, raise concerns relating to early dismissal of SLAPP claims, and the intention of claimant.

The prevailing view has been that there needs to be an early-dismissal mechanism to deal with SLAPPs, which appears in ECCTA under section 194.

Such a mechanism is problematic for three reasons. Firstly, SLAPPs are, by their nature, often unfounded. Therefore, it is not in the instigator’s interests that their claim proceed too far through the legal system for fear it will be summarily dismissed. For instigators, the optimal result is achieved when the mere threat of legal action silences the SLAPP target.

Secondly, the introduction of an early dismissal mechanism could add to, rather than mitigate, the existing problem with SLAPPs, as it presents an added layer in the litigation process that could lead to lawyers getting bogged down in legal arguments and increasing costs.

We must also remember that financial costs are the tip of an iceberg for targets. There is the physical, emotional, and mental toll that will almost always be taken with receiving a SLAPP – an extra layer of litigation could add to that.

Thirdly, the early dismissal mechanism hinges on the claim being defined as a SLAPP under the meaning in section 195, which depends upon the intention of the claimant, which will often be practically and evidentially difficult (at best) to assess, and may never come to light. Ultimately, determining intent could add to the complexity, and therefore the length and cost, of the early dismissal process, ultimately defeating its purpose.

There is some cause for optimism. There have recently been signs that wider anti-SLAPP measures could be imminent, with changes to the ECCTA part of that.

Justice secretary Alex Chalk has said that the government would support a bill brought by the Labour backbencher Wayne David to reduce the use of SLAPPs in the British courts. The proposal will also see cost-protection measures introduced to stop claimants deliberately running up exorbitant legal costs.

But will this legislation tackle the aforementioned issues with early dismissals and legal definitions? With an election likely to take place this year, it remains to be seen when it will even be introduced. It will, I think, be left to the next government to decide whether it wants to pick up the ‘SLAPPs hot potato’ and present a more comprehensive legislative regime… so watch this space!

By Dr Peter Coe
Associate Professor in Law, University of Birmingham, and member of Impress Code Committee.

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About Debrah

Debrah has worked on behalf of the research sector for over 20 years. As Managing Director of the Market Research Society (MRS), Debrah leads on its standards, policy and public affairs activities, working extensively with government departments and global institutions. Debrah has a wealth of knowledge of ethical Codes, quality standards, guidelines and data protection/GDPR and their enforcement. Debrah is also Chair of the Global Business Research Network (GRBN), Vice-President of the European Research Federation (EFAMRO), a member of the BSI Standards Policy & Strategy Committee.

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