Watch | SLAPPS: a threat to liberal democracy?

At a recent Prospect event, our guests discussed the issue that may be the biggest threat to free speech in the UK

May 10, 2023
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Fighting a libel action brought by the billionaire businessman and Brexit backer Arron Banks, investigative journalist Carole Cadwalladr felt that her “life was on the line”. 

Cadwalladr voiced her fear in a recent event on Slapps—the acronym for Strategic Lawsuits against Public Participation—co-hosted by Prospect magazine and the Foreign Policy Centre, a think-tank founded by the late former foreign secretary Robin Cook and New Labour colleagues.

The discussion was sponsored by RPC, the specialist defendant London law firm, which represented Cadwalladr in her case against Banks.

The term Slapps, which is borrowed from the United States, describes vexations and abusive media litigation by wealthy individuals or companies designed to harass, threaten and stop public interest journalism and silence criticism.

Essentially, it is a “gagging writ,” said Gavin Millar KC, the barrister who represented Cadwalladr in her case against Banks, which has the “chilling effect” of stifling journalism and presents the “most serious threat to free speech in this country”.

Setting the scene, Rupert Cowper-Coles, a partner at RPC, explained that Britain has one of the “most complex and expensive legal systems for resolving media disputes in the world.” Defending a claim to trial on the basis of truth or public interest, he said, usually costs over £1 million. The expense often forces publications, faced with “ruinous litigation” by the wealthy individuals they are seeking to expose, to settle claims, apologise and withdraw public interest journalism.

As well as the claim from Banks, Cadwalladr faced four legal threats over her work in the Observer and the Guardian exposing the Facebook–Cambridge Analytica data scandal in 2019. In the latter case, where the papers were also sued, the journalist had the support of their in-house legal team.

While it was “enormously stressful” and temporarily halted her reporting, Cadwalladr said that it was not the same as the “existential threat” of the litigation taken by Banks against her personally, where she felt that her reputation, career and livelihood were threatened, as well as her financial security.

Public scrutiny of allegedly abusive media litigation followed high-profile claims like those brought against the journalists Catherine Belton for her book Putin’s People and Tom Burgis who wrote Kleptopia: How Dirty Money is Conquering the World, and heightened after the 2022 invasion of Ukraine, due to concern over wealthy Russians close to Putin taking claims.

Speaking in the House of Commons, the Conservative MP Bob Seely accused law firms advancing such claims of “legal gangsterism” and the former lord chancellor Dominic Raab proposed US-style anti-Slapps legislation, which would introduce an early dismissal mechanism allowing judges to halt meritless claims.

The Solicitors Regulatory Authority, the body that regulates solicitors in England and Wales, published a “warning notice” reminding lawyers that “representing your client’s interests does not override wider public interest obligations and duties to the courts.”   It later revealed that it is investigating 50 complaints about law firms’ alleged use of Slapps.

At the heart of the debate over Slapps is the need to define and identify them— which, given the fact that some claimant lawyers dispute their existence, is tricky. 

Alan Rusbridger, the editor of Prospect who edited the Guardian for 20 years, read part of a comment piece in the Law Society Gazette, a magazine for solicitors. In it article Iain Wilson, the managing partner of London law firm Brett Wilson, branded the campaign against Slapps as “just another attack on the law of defamation” and argued that lawyers “are just facilitators and go-betweens”. He said that he found the perception that defamation lawyers help the wealthy suppress public debate “offensive,” insisting that in most cases the defendant has the “upper-hand financially.”

The difficulty of pinning down a Slapp is highlighted in Banks’ cases against Cadwalladr. While the High Court judge, Mrs Justice Steyn, who heard the case before it went to the Court of Appeal, found mostly in the journalist’s favour, she said that “it is neither fair nor apt to describe this as a Slapp suit”.

Cadwalladr dismissed the judge’s observation as “meaningless,” as there is no legal definition of a Slapp in UK law, arguing that Banks’ pattern of behaviour towards her over seven years demonstrated the abusive nature of the case.

Accepting that Slapps can be difficult to define, Millar suggested that the starting point should be to look at the societal value of the speech or activity at issue and decide whether it has “sufficient importance in a democracy to have an extra layer of protection around it”.

The biggest problem with introducing US-style anti-Slapp legislation in the UK, he said is that the underlying substantive law does not adequately protect freedom of speech—in contrast to America’s First Amendment.

In the three-part test proposed in the UK, judges would have to consider the public interest of the article, abusive features of the litigation and the merits of the case. 

It is, said Millar, a “fudge and a cop out” that merely replicates the existing “reasonable prospect of success” test already applied by courts to give summary judgment in cases lacking merit. He suggested that stronger protection was required in which judges do a “broad balancing exercise” looking at the reputational harm to the claimant caused by the particular speech that is being sued and the “societal implications” of allowing the case to go ahead.  

Judges, he suggested, should consider matters including why the claimant is bringing the action, whether the claimant is a big corporation or wealthy individual with resources to hire a public relations team and why they are using lawyers to go to the expense of taking a case.

Millar acknowledged that the government’s proposals were “better than nothing”, but voiced concern that little progress had been made to make them law, stating that “they are the horizon, but the horizon is moving further and further into the distance”.

In the audience, the Conservative MP David Davis insisted that the new justice secretary Alex Chalk is sympathetic to the concerns and retains an appetite to legislate, but is anxious not to “get it wrong and supress defamation law altogether”. 

Also speaking from the floor, the former UK Supreme Court justice Lord Jonathan Sumption suggested that it was unrealistic to look for procedural solutions to the problem because it would be “unprincipled to shut down litigation that has some prospect of success.”

Defamation actions, he added, were among the most difficult cases in which to assess whether a claimant has no chance. 

Instead, he argued that the right approach should be to reform the substantive libel law to create a wider public interest defence, akin to America’s First Amendment right to free speech, coupled with a statutory provision to empowers judges to determine the public interest as a preliminary stage.

But, Sumption concluded: “We’ve got to be realistic enough to appreciate that until the politicians are prepared to accept a much wider public interest defence … this problem is not going to go away.” 

Event write-up by Catherine Baksi

About the speakers and chair:

Carole Cadwalladr is a British author and investigative journalist. She is a features writer for The Observer and formerly worked at The Daily Telegraph. In 2018 she exposed the Facebook–Cambridge Analytica data scandal for which she was a finalist for the 2019 Pulitzer Prize for National Reporting.

Gavin Millar KC is a media law specialist, representing media outlets, journalists and politicians. He advised the Guardian on its Pulitzer Prize-winning coverage of Edward Snowden's disclosures and defended Carole Cadwalladr’s libel case with Arron Banks. He wrote about SLAPPs last year for Prospect

Alan Rusbridger (Chair), is editor of Prospect and former editor-in-chief of The Guardian during which time many high profile stories were published including the Wikileaks diplomatic cables revelations; the phone-hacking story which saw News International journalists jailed, and Edward Snowden disclosures about mass surveillance.

About the Sponsor

RPC is an international law firm specialising in media and technology, retail and consumer, insurance, commercial and financial disputes and regulatory, with offices in London, Bristol, Hong Kong and Singapore. It has the largest and one of the most highly regarded media defence teams in the UK, recognised in the market as the “go to” firm for publishers and journalists facing media litigation, with long-standing experience of defending public interest reporting."