The barrister and writer John Mortimer reportedly said: “If someone tries to steal your watch, by all means fight them off. If someone sues you for your watch, hand it over and be glad you got away so lightly.”
The aphorism remains true of litigation in general, but applies especially to the astronomic cost of going to court in the US—and, in particular, what two US academics described in 1988 as “a new breed of lawsuits… stalking America.” In these suits, corporations or public figures claim for injury from citizens who had committed abhorrent acts like circulating a petition, testifying at a public hearing, lobbying for legislation, peaceably demonstrating “or otherwise attempting to influence government action.” Academics George W Pring and Penelope Canan called them “strategic lawsuits against public participation”, or Slapps.
Early Slapp cases included claims for defamation, malicious falsehood and conspiracy to damage a person or firm’s economic interests. The lawsuits were usually brought against what Pring and Canan described as “typical, middle-class, middle-of-the-road Americans”.
Since then, a broad and generally accepted understanding of Slapp suits has emerged in the US. They were notably described by a judge in one case as “generally meritless suits brought by large private interests to deter common citizens from exercising their political or legal rights or to punish them for doing so.” Defendants are today often journalists.
Most US states now have anti-Slapp laws, allowing defendants to have such lawsuits dismissed at an early stage or to deter claimants from bringing them in the first place. In other words, they help people fight to keep their watches, even when they are sued. But what about on this side of the pond?
Historically the UK has not had such legislation introduced, because we do not have the strong constitutional protection for free expression that is enshrined in the First Amendment, which underpins anti-Slapp laws in the US. When forced to balance freedom of speech in the public interest against competing rights, our law has usually favoured reputation, privacy and protection from offence. Wealthy and powerful interests have taken advantage of this and used the law to shut down scrutiny and criticism, undermining citizens’ access to information and ideas that should be the subject of debate. Our democracy has suffered as a result.
But the arguments for having anti-Slapp legislation here have gained momentum and, in the last year, government support. That is largely because of oligarchs and corporations linked to Vladimir Putin bringing High Court claims designed to intimidate critics into silence. For years Roman Abramovich’s lawyers used Slapp tactics, writing letters threatening litigation to deter reporting about him profiting from his links to the Kremlin. A year before the truth finally came out during the war in Ukraine, he had sued Catherine Belton over 26 different passages in her book Putin’s People. Rosneft, the Russian state energy company, also sued Belton. And Abramovich sued the publisher in Australia as well. The publisher settled with Abramovich in December 2021 and agreed to amend the book.
The law should not have allowed itself to be used in this way to begin with. In the UK, arguments for anti-Slapp laws have been made consistently for decades. Egregious Slapps were being threatened long before Pring and Canan coined the term. Some were pursued at great personal and financial cost to defendants. Older readers will remember financier and political maverick James Goldsmith issuing more than 70 civil libel writs against Private Eye and its distributors in one month in 1976, along with a criminal libel case for good measure.
The “McLibel” case in 1997 was the longest libel trial in our history, at two and a half years (and far longer from the initial issue of writ to the final legal stages). It resulted in a damages award of just £60,000 to McDonald’s (later reduced to £40,000). The defendants were animal rights campaigners who had simply handed out a few hundred leaflets, critical of the company’s practices, while protesting outside one of its outlets.
Jimmy Savile was known for employing libel lawyers to write threatening letters to deter revelations about his offending. When police interviewed him in 2009 about sexual assault allegations made by four women, he famously said: “My legal people are ready and waiting. All we need is a name and an address and then the due process would start.”
An increase in Slapps has also been noted across Europe. At the time Maltese investigative journalist Daphne Caruana Galizia was assassinated, she faced almost 50 civil and criminal suits in different jurisdictions, including the UK. In Poland, politicians and entities associated with the ruling Law and Justice party spray around libel threats and claims against journalists like confetti. Earlier this year, the European Commission issued a draft directive and recommendation to pressure EU member states to curb the rise of Slapps.
Meanwhile in the UK, our Ministry of Justice (MoJ) consulted on possible anti-Slapp laws back in March. Its recent response to that consultation trumpeted intended legislation to “stamp out Slapps.”
The focus of the MoJ’s response was libel, though it recognised that Slapps can appear in other areas of law such as privacy, data protection and intellectual property. Perhaps unsurprisingly for a government that is clamping down on protesters’ rights, the ministry failed to identify actions against protesters as another potential form of Slapp. In particular, it should have recognised the use of harassment and trespass laws against environmental and animal rights campaigners.
Indeed, the MoJ response lacks a clear, principled definition of Slapp litigation, apparently leaving the detail for later. Instead it suggests that a Slapp claim amounts to a case that is: one, brought against activity in the public interest; two, features an abuse of the court process; and, three, involves insufficient evidence of merit to warrant further judicial consideration. This will not do. Lawyers and judges should be given a more straightforward way of identifying cases that can benefit from any new protections—one based, first and foremost, on the importance of the public interest speech at issue.
Under the government’s proposed new anti-Slapp measures, if the claim has all three characteristics then early dismissal will be possible. If it has only the first two, there will be special remedies for the defendant, such as protection against excessive adverse costs orders (if the claim succeeds) and “Slapp back” compensation (if it does not).
The UK’s Slapp debate has been revitalised. But some ask: are anti-Slapp laws really needed here?
An imbalance of wealth and power is a key characteristic of a Slapp suit. On the receiving end are typically campaigners, whistleblowers, NGOs, academics and investigative journalists. Increasingly these journalists are freelancers, without the legal and financial support that comes from employment by a major media company. They are sitting ducks for Slapps.
In response to the government’s consultation, the claimant lawyers (who represent those bringing the lawsuits) argued that anti-Slapp laws were unnecessary. The defendants and their lawyers disagreed.
The former argued that there are in fact few Slapp suits today, thanks to legal protections available to defendants since the days of Goldsmith, Savile and McLibel. These include the rights to freedom of expression and to protest in association with others, under Articles 10 and 11 of the European Convention on Human Rights—woven into our domestic law by the Human Rights Act 1998. They also cited the development of a common law public interest speech defence in defamation—now enshrined in the Defamation Act 2013, along with requirements for individual claimants to show they have suffered serious harm—serious financial harm in the case of corporations—before they can sue. There is also, under our current code of civil procedure for the courts, more scope than before to obtain early dismissal of claims as an abuse of process (essentially if you can show there has been misuse of the court’s procedures).
But our judges have been reluctant to use and develop these procedural rules to strike out claims, and it is difficult to use the other protections to end proceedings at an early stage. Certainly they can be of value, but generally the court’s decision about whether they apply comes later in a given case.
In a properly functioning liberal democracy, free expression is important per se
This means that current protections do not address the critical problem with Slapp suits in this jurisdiction: they remain complex, drawn out, stressful and, above all, very expensive. This litigation could hardly have been better designed to deter journalists and campaigners from challenging the rich and powerful.
Winning parties can only recover their legal costs where the court has approved them as reasonable (either in advance or after the case). But these can still be huge at the end of the process. Our courts take a generous view of what are reasonable legal fees, with sums much higher than in other European countries. The recent Vardy v Rooney libel case (also known as the Wagatha Christie trial), ending in a trial that lasted just seven days, racked up total costs approaching £2m if not more. Rooney could afford to defend the claim and she won, so Vardy will be ordered to pay the bulk of her legal fees. But a single journalist defendant could not risk fighting and losing a case with such costs involved.
There is no state funding to cover defendants’ legal costs in any kind of Slapp case, or to meet any costs they may have to pay to the claimant. They may be able to raise money through online crowdfunding, but it is unlikely to be sufficient. The mere threat of a Slapp will often discourage someone’s public interest activity or chill their freedom of expression; very few ordinary citizens can risk continuing. Claimant lawyers understand and capitalise on this. They specialise in writing long and complex pre-action letters for their clients, in the knowledge that this will probably deter the offending speech without them even having to issue a claim. These letters state repeatedly what the recipient must stop doing or saying—and what the adverse consequences will be if they continue.
The damage done when these letters achieve their objective is largely invisible and unquantifiable. No one can collate details of the public interest stories that are spiked from newspapers, the names left out of published copy or the campaigns that are cut short. But it should be obvious that anti-Slapp laws are needed to protect and encourage public interest speech and democratic participation.
The next question in the Slapp debate should be the one skirted around in the MoJ response: how can Slapp cases be defined to give the new law a principled basis, and give defendants clarity on when they can access the anti-Slapp measures?
The MoJ response observed that Slapp suits have “common hallmarks”, such as the claimant’s lawyers writing repeated aggressive letters. This is undoubtedly one hallmark of Slapp. But pointing to a few observable traits hardly gets to the nub of the issue, which is one of principle.
In a properly functioning liberal democracy, expression and participation on issues of social significance are important per se and should be strongly protected by the state.
The European Court of Human Rights, as well as our own courts, recognise that being sued for speaking out—or being threatened with being sued—is an interference with the rights to expression and association. In each instance where this interference is allowed to happen, the state must justify it.
The justification must be specific to the facts surrounding the litigation at issue. The interference is particularly serious where issues of high public importance are at stake, meaning the justification for permitting interference—that is, allowing the claim to be pursued—must be even stronger here.
It is often suggested that the justification for inference should depend on the intentions of the claimant. If the claim has an ulterior or improper purpose, it is said, the litigation should be stopped. That purpose might include preventing legitimate investigation and comment on alleged misconduct. It is said that a suit should be classed as a Slapp if it is one in which the court finds such a purpose. Otherwise, it should be allowed to proceed.
I do not agree. The deciding factor should instead be the social significance of the public participation at issue, and the effect that the lawsuit will have on it. If a principal effect of the legal action will be to deter or chill participation in an area of social significance, then strong justification should be required for allowing the suit to continue and anti-Slapp measures should be available to the defendant.
While our judges may be unfamiliar with this sort of assessment now, they can become familiar—just as they have learned to make other nuanced, evaluative judgments in rights cases since the Human Rights Act. It will be an objective assessment based on the evidence the defendant places before the court about the importance of the activity and likely adverse effect of the litigation. This is the correct approach in principle. It also prevents the court from having to dive into the murky evidential terrain of the claimant’s intentions.
If they are to have real value, anti-Slapp measures should include a procedure allowing the defendant to apply for a stay or dismissal of the proceedings in the first three months.
If the claim is dismissed, the claimant should be ordered to pay the defendant’s costs and the court should have the power to award “Slapp back” remedies. If it is not, the defendant should not be liable for the additional costs to the claimant from the application being resisted (except in exceptional circumstances, for example where the court decides there was no arguable basis at all for the application to dismiss). Defendants with legitimate anti-Slapp arguments should not be deterred from pursuing them in good faith for fear of being penalised in costs.
The remaining issue is: what might be the justification for allowing the case to proceed? Here there is disagreement. One respectable argument is that some sort of merits test should be applied to the claimant’s case. This would be a threshold for the claimant to clear. Any part of the claim that passes this test on the facts and the law would be allowed to proceed.
The difficulty is in specifying the merits threshold that the claimant must cross. It could be a high one (for example, they have a claim that is likely or very likely to succeed) and I accept that if it were, this would give real protection to the defendant. But this is a rigid, all-or-nothing approach. If the test is passed, the claim will proceed no matter whether the issues are of social significance, or how serious the adverse effects of the action will be on public participation. This is liable to weaken the protection.
Here I think the court should be asked to adopt a more flexible approach. It should realistically assess the harm that will be done to the claimant’s interests if the claim is halted and balance this against the harm that will be caused by continuing with the litigation. If the balance is for halting the litigation, the judge should act accordingly. Again, this will be unfamiliar territory to our judges, but they will learn to make such judgments over time.
I hope judges will be given these powers soon, and that they will use them to dismiss strategic lawsuits against public participation where they deserve to be thrown out. That way, journalists acting in the public interest and protesters rallying against injustice will be able to fight for, and keep, their watches.