In his post of 25 May 2022 Iain Wilson asked whether Strategic Lawsuits Against Public Participation (SLAPPs) are “a real problem or a defendant’s wildcard”. As co-chairs of the UK Working Group on SLAPPs we are regularly confronted with the all-too real effects of SLAPPs on public watchdogs – those, such as journalists and activists, whose role it is to hold the powerful to account. The problem with responding to Iain Wilson’s claims of exaggeration, however, is that we ultimately have to address a counterfactual: what information would have been published had it not been subject to a SLAPP?
On the one hand, each year seems to bring more cases that we can confidently refer to as “SLAPPs”. Our central concern, however, is not so much with the immediate impact of SLAPPs on those targeted (brutal as it can be) but on society at large: the articles never written, the reports never published, the abuses of power never exposed. The cost to public discourse – and indeed to our democracy as a whole – is incalculable.
Why did we have to wait for Jimmy Saville to die before finding out he was a serial sexual predator? Why has it taken so long to understand the full extent of London’s dirty money problem? Why did it take so many women to say #MeToo before newspapers were willing to write about Harvey Weinstein, R. Kelly, Noel Clarke, and others? The answer is best found in the case of Savile, who once boasted to a police officer of his “policy” towards those who sought to challenge him: ‘See I’m known in the trade as litigious. Pull people into court straight away, no messing. “Oh dear, I’ve been wronged, your Worship. Wronged! Dreadful!”. Two hundred grand. Five times I’ve done that” . Savile ended his interview with another one of his less-than-subtle threats: “if this disappears, it disappears. If it doesn’t disappear, then you, young lady, will end up at the Old Bailey as with everybody else”. The policy was, of course, a success, with inconvenient stories about Savile “disappearing” from the papers for over 50 years.
Of course, this chilling effect will always be largely immeasurable. Why then are we so sure that SLAPPs are a growing problem? In part our conviction reflects the dozens of conversations we have had with editors and in-house media lawyers who have informed us of the routine nature of retaliatory legal threats. We’ve also seen the problem quantified through research by the Coalition Against SLAPPs in Europe (CASE) and the Business and Human Rights Resource Centre (BHRRC): the 570 cases studied by the former and the 355 cases studied by the latter have both resulted in a clear conclusion that SLAPPs are on the rise. But we’re also able to extrapolate from existing research to identify England and Wales as a particular problem: both directly, through the research of the Foreign Policy Centre – which found that the UK was “by far the most frequent country of origin for legal threats” – and indirectly, through research on the conditions that best give rise to SLAPPs. A recent report published by the Foreign Policy Centre and ARTICLE 19, for example, highlights elements within the UK’s legal system that give rise to significant challenges for journalists defending themselves in UK courts – including high costs, excessively lengthy proceedings, and intrusive disclosure practices. In short, SLAPPs are parasitic: they feed off deficiencies in the law or legal system and exploit gaps in procedural protection.
Let us then be clear about this: SLAPPs emerge as a problem when a system of civil justice is broken. And our system is broken. For one thing, it is slow and inefficient: the average length of civil proceedings is 350 days, 30% higher than the OECD average. This contributes to the high costs of proceedings, which is an area where England really distinguishes itself: while no recent comparative analyses exist, little has changed since 2011 when the UK was found by the Institute for Legal Reform to be the most costly country for litigation in Europe. Even preliminary hearings, at which stage defendants might seek to get the case thrown out on meaning or jurisdictional grounds can run anywhere from £50,000 to £100,000.
As Iain Wilson notes, the intimidatory impact of SLAPPs is best advanced through the prospect of high costs. It stands to reason, therefore, that a court system with eye-wateringly high costs is going to be more fertile ground for the emergence of SLAPPs than a system that is affordable and accessible to all. For that is the natural result of these high costs: they have the practical impact of making the courts inaccessible to those with few resources. This allows well-resourced claimants to force defendants out of the court system, irrespective of the merits of the case they are arguing.
Wilson states that “an early capitulation from the defendant” as a result of the risk of costs is how an adversarial legal system is intended to work. But while the Civil Procedure Rules (CPR) of England and Wales may be intended to keep cases out of court, this is obviously meant to extend equally to both parties. If one party can force an early capitulation on the basis that they can afford to keep a case in court and the other cannot, this is not a roadmap for the efficient administration of justice. It’s a recipe for abuse.
Wilson further states that the prospect of a trial “focus[es] the mind of publishers”. But what does it focus their mind on? Is it on the merits of their case, the accuracy of the publication, or the newsworthiness of the story? Or is it on the enormous legal bill they’ll receive at the end of months or even years wasted in litigation?
In an age where investors are increasingly shunning the British newspaper industry, we would contend that the latter is a more accurate reflection of the reality of a newsroom. Either way, it is in any event a huge mischaracterisation of the problem to suggest this is just about “the traditional media”. Indeed, of the 570 SLAPPs identified by the Coalition Against SLAPPs in Europe (CASE) only 133 (23%) targeted newspapers or other media organisations. Most SLAPPs target individuals, often alongside the organisations who employ them. Individuals are easier to isolate and intimidate, after all.
But once we shift attention from a hypothetical wealthy newspaper to an individual journalist, author, activist, or whistleblower, the picture looks very different. What exactly does the prospect of a long drawn-out lawsuit focus their mind on? Exhausted life savings? Bankruptcy? Hours spent on legal strategy that could have been spent campaigning for change and holding the powerful to account?
Some of the high-profile SLAPP targets in recent years – Tom Burgis and Catherine Belton, for example – were fortunate enough to receive institutional support from their publishers. Others such as Carole Cadwalladr were not. Some – such as Clare Rewcastle Brown and Scott Stedman – were freelancers or actors who were otherwise operating independently. Yet while the number of identifiable SLAPP cases have undoubtedly increased in recent years – and become more shamelessly abusive in the process – the main concern is the cases we don’t hear about. For every SLAPP that goes to trial there are dozens more that are settled before they attract public attention; for every SLAPP that is settled, there are hundreds of publications forcibly retracted before a case ever gets to court.
Wilson’s suggestion that “if [defendants] choose to settle a claim, it is because they lack confidence in the outcome” fundamentally misunderstands how journalists, activists, and NGOs approach the decision of whether to pursue a claim. The reality is that the decision to settle generally has very little to do with the expected outcome of the case. Some will be fully confident of the merits of their case but be unable to afford the legal fees needed to take the case all the way to trial. For others, even the slightest uncertainty in the law – which Wilson himself concedes is riddled with ambiguities in the context of defamation – can be enough to discourage them from risking the huge costs associated with the defence. Those that do have the capacity and confidence to take a case to trial, meanwhile, do so in the knowledge that they are likely only to recover a portion of the costs incurred – as Wilson notes, it is only “if the claim is wholly without merit” or the conduct of the claimant has been particularly egregious that costs will be awarded on the indemnity basis.
Wilson is quite right to say that high costs are an issue in any civil area of litigation. Indeed, it’s worth emphasising that the movement against SLAPPs is not an “attack on the law of defamation”. We are acutely aware that a range of other laws – including copyright law, privacy, data protection, and even laws against harassment – can be abused to silence acts of public participation. This is why our focus has always been on building procedural safeguards into the law, rather than tinkering with substantive law reform. The campaign for anti-SLAPP protection does not, therefore, require us to import a US-style approach to defamation law: indeed, the First Amendment has done little to reduce the problem of SLAPPs in the US, with high legal fees and gaps in procedural protection continuing to provide the conditions needed for SLAPPs to proliferate.
It’s also worth emphasising, however, the unique societal impact of SLAPPs. Let’s say, for example, that a multimillionaire contracts someone to build the bases for casino slot machines and then refuses to pay (as allegedly happened with Donald Trump – someone who is himself a notorious SLAPP litigant). As with the examples above, high costs essentially make the courts inaccessible to those with less money. The difference is that with SLAPPs this inaccessibility doesn’t just impact the individual – it impacts press freedom, democratic accountability, the public right to information, and ultimately good governance. This is not just a tension between the rights and interests of two individuals – there are systemic implications for the way we govern ourselves as a free society.
So who should be responsible for identifying and filtering SLAPPs out of the court process? We share Wilson’s view that the primary responsibility should be the Court’s, which is why we’re calling for a new statutory mechanism to dispose of cases targeting public participation at the earliest possible stage. This would provide an additional layer of protection to all public interest speech and require claimants targeting such speech to meet a higher merits threshold, thereby avoiding any need to examine the mental state of the claimant.
Theoretically, English courts are able to strike out claims that represent an abuse of the court’s processes – a category that includes claims that are pursued with an improper purpose. In practice, however, courts have proven reluctant to infer this improper purpose and dismiss a case accordingly. This is why we believe a new mechanism is necessary with a heightened threshold for cases targeting public participation. Fortunately, with 33 state-level anti-SLAPP laws in effect in the USA alone – most of which take a similarly objective approach to filtering out SLAPPs – we are not having to start from scratch in developing such a mechanism.
This should not mean, however, that lawyers should remain entirely insensitive to the issue of SLAPPs. Lawyers should not be confused with their clients or expected to engage in telepathy to discern the true purpose of the lawsuits. It’s not true, however, that a lawyer is never expected to undertake independent due diligence on their clients: lawyers must, for example, undertake customer due diligence to comply with their statutory anti-money laundering obligations. Lawyers have a clear obligation to the court not to facilitate the abuse of court proceedings. If there is good reason to believe that they are facilitating the weaponisation of civil proceedings to “silence criticism”, regulatory bodies may find the actions of the lawyer to have shown lack of integrity, inviting disciplinary action.
Similarly, even if a lawyer is justified in representing a client, this doesn’t then provide a free pass for the lawyer to engage in whatever tactics they want to. Such abusive tactics that may attract sanctions include taking ”unfair advantage of a victim or an unrepresented person”, such as by stretching our proceedings or driving up costs, or using “overbearing threats” without intending to ever pursue a legal claim. Indeed, the court has been clear that the tactics used by the lawyer are ultimately the responsibility of the lawyer, not the client. There are already a range of tactics, such as deliberately misleading the court, whose unethical nature is beyond dispute. It is hardly therefore a radical proposition that so-called “SLAPP tactics” – i.e. efforts to deliberately drive up costs or otherwise use the litigation process as a means of harassing or intimidating the defendant – should be considered equally unethical.
Wilson describes our defamation laws as creating a “careful balancing act” between freedom of expression and the protection of reputation, and describes talk of SLAPPs as “greatly exaggerated”. Yet it’s precisely because SLAPPs are such a problem that the balance has become so weighted in favour of the rich and powerful. This doesn’t so much reflect problems with the Defamation Act 2013 itself – though enduring ambiguities in the law can lend greater potency to aggressive legal threats – but with problems in the legal system as a whole: problems that allow SLAPP claimants to harass, intimidate, and otherwise weaponise the court process against public watchdogs. This is not about the right to redress reputational injury. It’s about preventing that right being used as a pretext to abuse the rights of others.
Charlie Holt (English PEN), Susan Coughtrie (Foreign Policy Centre), and Jessica Ni Mhainin (Index on Censorship), Co-Chairs of the UK Anti-SLAPP Coalition