“The first thing we do, let’s kill all the lawyers,” said Dick the Butcher to Jack Cade. This line of Shakespeare, from Henry VI, Part II, comes to the fore whenever law and litigation is in the news. Get rid of the lawyers, the rebels’ implication goes, and you get rid of the problems of the law.
The litigation currently in the news is about Russian oligarchs, post-Soviet corporations and others with money and power who are bringing claims in the High Court in London against journalists and others, with the plain objective of discouraging or eliminating any adverse comment or scrutiny. Many in politics and the media say it is the lawyers who are to blame.
Blaming lawyers for the law, and how the law is misused, is easy. But it is not a good way of thinking about problems such as “Slapp”—“strategic litigation against public participation”—which see the powerful abuse law in this way. Instead, the focus on the lawyers is a way of not thinking about the problem, and it will not lead to the problem being solved.
Individual lawyers do not make the law. In common law systems such as England and the United States, the main sources of law are legislation enacted by a legislature and authoritative judgments given by appeal courts. In this way, lawmaking is a collaborative exercise. Many hands are needed to produce a statute, or for a case to reach an appellate bench.
This means any individual lawyer has to act within a legal framework which they did not create themselves. To visit on the lawyer the sins of the system is thereby misconceived. To solve the problem of Slapp lawsuits, an overhaul of substantive law and procedure is needed, so that opportunities for the misuse of law to close down opposition or scrutiny are themselves closed down.
If you sanction individual lawyers for assisting their clients with Slapp lawsuits, as some have proposed doing, there are other competent and ambitious lawyers to take their place. The clients will still want these services, and the law will enable these services to be provided. Individual sanctions are futile gestures, even if satisfying to those who impose them.
Do not visit on the lawyer the sins of the system
The problem of Slapp is real and stark. Individual journalists and their publishers face expensive, time consuming and stressful legal actions, and there is little they can do to avoid this if they are to write about those with power. It does not matter that they have sources for their work and even put their points to their subjects before publication. The powerful can litigate anyway, and create years of uncertainty and misery for those who displease them.
But although the problem is real, it is also complex. No two Slapp cases are the same. Sometimes the pressure point used is the substantive law, such as defamation or (increasingly) data protection. Sometimes it is procedural pressure, with the costs of forcing the critics and their publishers to fund endless defences, and of endless applications and appeals.
There is not one legal reform that would, at a stroke, make Slapp cases impossible to threaten or to bring. And many of the anti-Slapp laws in the United States are already part of the law of England, and Slapp cases still happen.
Hard problems need hard thought. How can it be made more difficult for the well resourced, with access to competent legal advice, to threaten or bring legal actions to quell unwelcome attention? Can defamation law be further reformed to make it more difficult to make the claims in the first place? Can a general public-interest defence cure the misuse of privacy and data protection laws? How can litigation be made less of an expensive risk for publishers? Should writers be protected from being sued separately to those who publish them?
And what if there is a wrong that has been committed by the media? Consider the extensive phone-hacking cases involving celebrities and businesspeople who have sued newspapers over breaches of privacy rights: no sensible person would say such cases are wrong. But how do you allow those “good” cases while stopping the “bad” cases of the powerful relying on their legal rights?
Slapp is therefore a problem easier to define than to solve. Preventing such misuse of law for ulterior purposes is something that should be done. Yet “something must be done” is often a prelude to botched changes. Getting rid of Slapp will require a comprehensive review of the litigation system, with care taken that meritorious cases are not stymied.
Such a slog is not a quick answer in this age of instant political gratification. We cannot cope easily with complexity. It is far simpler to convert the policy predicament into political pantomime. Let’s boo all the lawyers instead, if killing us all is perhaps too extreme.