In October and November last year I wrote an article for The Conversation and Inforrm on Strategic Lawsuits Against Public Participation, or SLAPPs. Since then I have been invited to join the Council of Europe’s Committee of Experts on SLAPPs, I have given oral and written evidence to a Justice Committee on SLAPPs, and I have given my views on SLAPPs to the Ministry of Justice in response to its Call for Evidence.

This is a collection of some of my thoughts on SLAPPs and on some of the suggestions that have so far been made to tackle this type of litigation. However, before proceeding I want to make two things clear. Firstly, I do not for one moment think that I have the answers to tackling SLAPPs, rather what I offer here are thoughts and suggestions that undoubtedly require further refinement. Secondly, I am in no doubt that for the interests of justice to be properly served an appropriate balance must be struck between allowing and enabling individuals and organisations to legitimately protect their reputations and privacy and protecting freedom of speech whilst ensuring the safety and security (physical, financial and otherwise) of those individuals and organisations that uphold this right.

Can SLAPPs be defined?

During the Justice Committee session and in discussions with my colleagues at the Council of Europe much was and has been said on whether SLAPPs can and should be defined. What is clear is that determining whether a lawsuit is or is not a SLAPP can be very difficult. I think, very often, the only way of really knowing whether a lawsuit is a SLAPP is to know the claimant’s motivations for bringing the claim – but of course, this will often be practically and evidentially difficult (at best) to assess and is therefore unlikely to ever come to light.

What makes the situation even more challenging is the fact that very often the mere threat of litigation is enough to prevent the would-be defendant from continuing ‘the public participation’. Therefore, the ‘action’ does not proceed any further than a strategic ‘threat’. For these claimants they may know that, if taken further, they have very little or no chance of ‘winning’ their claim and receiving damages. That is not their objective. Rather, their objective is to use the threat strategically to scare a potential defendant into not, for instance, publishing an article.

What we do not want to do is to create a definition through statute that prevents legitimate and meritorious claimants from being able to pursue a cause of action that could protect and/or vindicate their reputation and/or protect their privacy because it wrongly categorises an individual as being a SLAPP litigant. With the wrong definition, and by excluding individuals or organisations from accessing justice based on, for instance, perceived status, or wealth, we could create a slippery slope to irresponsible reporting, and to a situation where although some SLAPPs will be prevented, we may inadvertently deter legitimate claims.

Perhaps rather than trying to create a definition of SLAPPs all that needs to be demonstrated is that the publication (for example) is an act of ‘public participation’ (for this we could look to Articles 3(1) and 3(2) of the European Commission’s Proposal for a Directive of the European Parliament and of the Council on protecting persons who engage in public participation from manifestly unfounded or abusive court proceedings (“Strategic lawsuits against public participation”) for a definition of ‘public participation’ and ‘matter of public interest’). If the ‘participation’ meets these criteria then the ‘action’ would be subject to a preliminary hearing, at which point a judge would make a more detailed assessment of the proposed claim to determine whether or not, at this stage, it is a SLAPP.

At this stage the hearing would look at external factors to the particular claim that pertain to a list of SLAPP ‘key features’ (so it would be determined on a case-by-case basis), such as the claimant’s response to the same criticism made elsewhere, or the nature/oppressiveness of any pre-action correspondence (so in other words, does look and smell and sound like threats). It would also consider the claimant’s status (and how that compares to the potential defendant) and their past behaviour (for instance, is there evidence of forum shopping). But, importantly in my view, these cannot be determining factors – just because an individual has been a SLAPP litigant in the past does not make them one in the present. Equally, the claimant’s perceived ‘status’ should not be a determining factor.

Even if, at this preliminary stage, it is determined that the claim is not a SLAPP, this assessment should continue during the course of the litigation, as new evidence may come to light which changes this determination.

Importantly, costs would be capped…more on this in a moment.

Notwithstanding this suggestion, I think an important point to reiterate is that SLAPPs are often ‘just’ threats. They do not make it to a formal claim being issued. The threat is enough. Of course that threat manifests for defendants as a potential financial threat, but we also must be alive to the fact that the financial cost is the tip of an iceberg. There is also the physical, emotional, and mental toll that will almost always be taken on defendants, or would-be defendants, regardless of cost. Even if we introduce a preliminary hearing, it is an imperfect solution, because there will still be a toll taken (potentially financial, but almost always physical, mental, and emotional).

The range of actors impacted by SLAPPs: citizen journalists

SLAPPs do not just impact institutional journalists and the broadcast media. They are used against NGOs, charities, pressure groups, environmentalists, academics, lawyers, the judiciary, and citizen journalists. It is the latter of these actors that my wider research is concerned with, and which have therefore been the focus of my work in this area.

As a member of the IMPRESS Code Committee, during its Code and Guidance re-drafting process we worked with a number of regulated and non-regulated journalists and publishers to get their views on the Code and its Guidance. Many of these journalists and publishers were independent, or citizen journalists. Three things became clear from this work, and from my own research. Firstly, independent publishers and citizen journalists are making a vital contribution to public discourse in respect of gathering and publishing news, and as sources of news for the mainstream press. However, and secondly, because many independent publishers and citizen journalists operate outside of, and indeed have never been part of, the ‘institutional’ press, they do not have the same education, training, and professional experience that typical institutional journalists have. They also do not have access to the same support (for example, legal advice) that journalists working for a traditional newspaper would have. Therefore, in many cases their knowledge of law, and more specifically their understanding of the intricacies of defamation law and its public interest and truth defences (among others) is limited (to go back to a point made during the Justice Committee session, I doubt many would be familiar with McNae’s Essential Law for Journalists!). Thirdly, when citizen journalists and independent journalists are on the receiving end of a SLAPP, because of the nature of citizen journalism and independent publication, these journalists do not have the ability, time, or resources to ‘absorb’ the SLAPP. Consequently, as was discussed at length during the Justice Committee session, the anecdotal evidence is that the ‘threat’ is often more than enough to prevent publication. Litigation therefore does not, at least formally, ensue. Because of the central role that these publishers are now playing in free speech and public discourse this is democratically concerning. This is where approved regulation can play a vital role.  It can add a layer of protection to its members by providing training to help to avoid and deal with SLAPPs (and other litigation) and it can provide vital assistance in managing SLAPP claims when they do occur. Therefore, to an extent, it insulates its members, which in turn helps to protect free speech and the integrity of public discourse. Unfortunately, this government’s plans to repeal section 40 of the Crime and Courts Act 2013 through the enactment of the Media Bill further undermines the efficacy of approved regulation.

Costs and cost capping

I pointed out to the Justice Committee that if we are going to cap costs for SLAPP claims, and if this is going to effective, we also need to cap costs for all defamation claims (and also for other causes of action used for the purposes of SLAPPs, such as copyright, misuse of private information and data protection). This is because, as I have said previously, the nature of SLAPPs means that the ‘threat’ is often more than enough to prevent the expression or the publication. As we know this ‘threat’ may come before any formal claim is started. So even if we propose introducing some sort of preliminary hearing (see above), at this point the defendant will still not know whether the claim is a SLAPP claim or whether they are faced with a legitimate claim for defamation (etc) that could be allowed to proceed. Therefore, the threat is supported, and is given weight, by the costs incurred and the damages awarded for legitimate defamation (etc) claims. This means that at the point at which the ‘threat’ is made and received the defendant may be thinking to themselves “I don’t know whether a judge will determine whether this is a SLAPP, and if they do not, I could be subject to substantial costs and or damages. Therefore, I am not going to risk publication.”

Presumption of falsity in defamation law

Section 2 of the Defamation Act 2013 provides a defence to an action for defamation if the defendant can show that the statement complained of is substantially true. According to the MoJ’s Call for Evidence, one reform option on the table is that in SLAPP cases the burden of proof would instead fall on the claimant to prove that the statement is false. Notwithstanding the challenges with identifying SLAPP claims that I have set out above, these are my brief thoughts on the presumption of falsity as it currently stands.

The defence as it is under section 2 applies a reverse burden of proof, which means that unless the defendant can prove that the defamatory statement is true on the balance of probabilities, it is presumed to be false. The rationale for this reverse burden is sound: it reflects the power of the press (and wider media) to damage individuals’ reputations. However, there is, I think, a rejoinder to this argument that is worthy of consideration. This reversal of the normal burden of proof could encourage claimants to sue even if they know that what the defendant said was true; a situation that is amplified by the SLAPP phenomenon. I have written about this in the context of citizen journalism and independent publishers in my book, Media Freedom in Age of Citizen Journalism, in which I have essentially said that because of the critical role these journalists now play in free speech and the health of the public sphere, the concern that the reversal of the burden of proof could encourage claimants to sue, and the damage that can flow from this, is arguably more acute. Citizen journalists and independent publishers tend not to have the same ‘awesome power’ at their disposal, at least in financial terms and access to legal resources, as the traditional institutional press. As a result, they are more vulnerable to an imbalance in power and therefore more susceptible to litigation between themselves and wealthy claimants wishing to silence them. The same argument can, of course, be applied to NGOs, charities, pressure groups, and academics, among others.

Dr Peter Coe is a Lecturer in Law at the School of Law, University of Reading, and a Research Fellow at the Institute of Advanced Legal Studies and Information Law and Policy Centre, University of London. He is the editor-in-chief of Communications Law.