An interesting piece in the Guardian on 18 January focused on a letter sent recently by Carter Ruck to the Soil Association warning of potential liability under libel law if an objection to a planning application was not withdrawn. The piece quoted David Banisar of Article XIX who characterised the letter as a ‘strategic lawsuit against public participation‘ (SLAPP).

SLAPPs were first discussed by two American professors (of law and sociology respectively), George Pring and Penelope Canan, in a series of academic papers and then a ground-breaking book in 1996.  They focused on attempts by wealthy interests to prevent others from communicating with emanations of the government (relying specifically on the right to petition government for redress of grievances subclause of the First Amendment to the US Constitution). The position in the UK was surveyed by Fiona Donson (now of University College Cork) in her 2000 book Legal Intimidation.

On the back of the work of Canan and Pring, and as cited by David Banisar, many US states have introduced “anti-SLAPP” legislation that affords the victims of SLAPPs the opportunity to counter-sue when attempts to chill such public participation occur. That introduced in California, which covers attempts to restrict both petition of government and free speech more generally, is most heavily used. Other jurisdictions have introduced similar legislation (see, for example, that in Quebec). Indeed, the libel tourism blocking statutes introduced of late in the US – at least in their more aggressive form – can be understood as just such measures.

In our initial paper examining the proposals for reform of libel law put forward by Index on Censorship and English PEN, Alastair Mullis and I suggested that rather than focus on substantive revision of the law one potentially valuable avenue for further consideration was the development of anti-SLAPP provisions in this jurisdiction (whether based on common law or by way of legislative intervention). Its fair to say that as co-authors we took, and I think still take, diverging views as to the potential workability and perhaps the desirability of the option.

One quandary for those devising anti-SLAPP legislation is the difficulty in distinguishing between bona fide actions brought to assert legal rights or defend interests and other actions that are designed to chill public participation. There are also concerns over access to justice for claimants. Understandably, media defendants tend to view such proposals as being likely to give rise to just more satellite litigation; claimant lawyers tend to consider talk of anti-SLAPP provisions as nonsensical. Nonetheless, it has been very surprising to me that this option has not been picked up by supporters of the libel reform campaign, especially given the repeated assertions that they are not about promoting the interests of the mainstream media. The garret-room blogger, the public-spirited scientist, and the impecunious local or specialist publisher are precisely the people who might have most to gain from the availability of anti-SLAPP options.

This post originally appeared on the Mediapal@LSE blog and is reproduced with permission and thanks