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Strategic Lawsuits against Public Participation (SLAPPs) – some definitions and resources [Updated]

The Government has issued a “Call for Evidence [pdf]” in relation to “Strategic Lawsuits Against Publication Participation” (SLAPPS).  Even before the evidence is in the Government appears to have made up its mind, announcing in advance “Government clampdown on the abuse of British courts to protect free speech“.

SLAPP is not term used in any English legislation and has not, to date, been discussed in any judgment.  The Call for Evidence does not offer a definition of a SLAPP.  Under the heading “What are SLAPPs” it tells us that the term is “commonly used to described activity that aims to discourage public criticism through improper use of the legal system“.  It says that SLAPPs have “two key features”:

  • They target acts of public participation. Public participation can include academic research, journalism and whistle-blowing activity concerned with matters of societal
    importance, such as illicit finance or corruption.
  • They aim to prevent information in the public interest from being published. This can be by threatening or bringing proceedings which often feature excessive claims (see page 5).

It goes on to say that “SLAPPs are often framed as legal cases but they  represent an abuse of law and procedure as their principal objective is stifling public debate, rather than the pursuit of a legal remedy”.

There are a number of national and international studies which have  considered the meaning of the term and the incidence of SLAPP cases.

The European Commission has proposed the following definition

“Strategic lawsuits against public participation (SLAPPs) are a particular form of harassment increasingly used against journalists and others involved in protecting the public interest. They are groundless or exaggerated lawsuits initiated by state organs, business corporations or powerful individuals against weaker parties who express criticism or communicate messages that are uncomfortable to the litigants, on a matter of public interest. Their purpose is to censor, intimidate and silence critics by burdening them with the cost of a legal defence until they abandon their criticism or opposition. While civil society actors can be vulnerable to such initiatives, the nature of journalists’ work makes them particularly exposed  (see “On the European democracy action plan“, para 3.2)

This definition is adopted in the Irish Government’s recent Report of the Review of the Defamation Act 2009 [pdf], p.163).  This review contains a full discussion of SLAPPs including comparative material and makes the following recommendation

to introduce an ‘anti-SLAPP’ mechanism to allow a defendant to bring a motion to court seeking early dismissal of defamation proceedings against them which appear to be without merit and contrary to the public interest (p.283).

The report of a number of European newspapers, journalists NGOs, “Protecting Public Watchdogs Across the EU: A proposal for an EU Anti-SLAPP Law [pdf] contains the following proposed definition of an  ‘abusive lawsuit against public participation’

“a claim that arises from a defendant’s public participation on matters of public interest and which lacks legal merits, is manifestly unfounded, or is characterised by elements indicative of abuse of rights or of process laws, and therefore uses the judicial process for purposes other than genuinely asserting, vindicating or exercising a right” 

The Coalition against SLAPPs in Europe (CASE) has produced a report [pdf] identifying 570 SLAPP cases in Europe over an 11 year period.   The Table of Cases on which the report is based shows the most cases being brought in Poland (119) with the highest figure of “Cases per 100,000 of population” being Malta (8).  The United Kingdom  was number 25 on the list (out of 31) with 19 cases identified and 0.03 cases per 100,000 of the population.

There are a number of other studies and submissions dealing with SLAPPs and related issues:

Updates

1 Comment

  1. Christopher Whitmey

    The quote “SLAPPs are often framed as legal cases but they represent an abuse of law and procedure as their principal objective is stifling public debate, rather than the pursuit of a legal remedy” prompts me to rewrite it: “Failure to bring the Crime and Courts Act 2013 s.40 into force is often framed as protecting the freedom of the press but it represents an abuse of enacted law and procedure as the principal objective is stifling public criticism, rather than the pursuit of a legal remedy”.

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