A SLAPP-up Meal for Journalists and a Dog’s Breakfast for the Rest: The Government’s ‘Opening Salvo’ Against SLAPPs – Paul Wragg

Back in March, exercising rare concern for those exploited by the super-rich, the government issued an ‘urgent call for evidence’ that promised, based upon ‘third party and anecdotal evidence’ [42], ‘quick and effective’ action against Strategic Litigation against Public Participation (“SLAPPs”).

The government has now issued its Response, setting out its plan to tackle SLAPPs. which, as Inforrm notes, raises more questions than answers. Whilst it is laudable that Dominic Raab should exercise a single-minded determination to ‘protect those who speak out in the public good’ not seen since his single-minded determination to silence those who spoke out in the public good about him a decade ago, his approach to SLAPPs is a questionable use of executive power.

First, there is the speed with which this process has been undertaken. Why did Raab issue an ‘urgent call for evidence’ on this issue given that there are so many more pressing problems that plague the legal system, from inadequate Barristers’ pay at the Criminal bar to the chronic shortage of legal aid, from the exorbitant cost of application fees to the disappearance of recoverable success fees, all of which surely speak more urgently to ‘inequality of arms’ [46] than SLAPPs do?

Secondly, the terms of the Call for Evidence were a masterclass in confirmation bias. It is one thing for the government to investigate the feasibility of state intervention on pressing matters of social concern based on robust evidence of some underlying phenomenon. It is another for the government to commit itself to swift and decisive action based on flimsy anecdotal evidence, which is exactly what the Call for Evidence did through its stark, unequivocal language to describe unsubstantiated reports. It is a testament of predetermination, as Raab railed against the ‘increasing’ usage of SLAPPs, of an ‘abuse of the legal process’, of ‘improper means’, of a ‘chilling effect’ on free speech and, most obliquely of all, of some connection between SLAPPs and the war in Ukraine. Only this government could so brazenly initiate an ostensible fact-finding exercise seeking proof of an unverified practice whilst simultaneously committing itself wholeheartedly to the eradication of that practice, and with the same feverish indignation as the Bellman had for the Snark. Only the first 7 of the 45 questions concerned the existence of SLAPPs, and even these were less directed to ascertaining the extent of the problem so much as inviting self-declared SLAPPs recipients to provide emotional reactions to that experience.

The inadequacy of investigation into the antecedent issue – is there a SLAPP problem? – is further exacerbated by the paucity of evidence provided by the Response itself. We are given nothing more than bald statements, such as that the Call ‘produced robust evidence of SLAPPs behaviour’, [7]. There are no numbers, metrics, or specifics anywhere. How many people are affected by SLAPPs? Is it more or less than the number of people unable to obtain access to justice due to restrictions on legal aid and conditional fee agreements?

The absence of detail is all the more astonishing given broad recognition in the Response that the Call did not produce ‘unanimous’ views on the nature, let alone existence, of the SLAPPs phenomenon. Having noted that many respondents thought the problem exaggerated and, in any event, catered for by the law, the Response concludes, dismissively, ‘We have carefully considered these views but on balance we believe that the case is made for reforms which address the particular challenges of SLAPPs’ [13].

Thirdly, the government’s apparent inability to define the term ‘SLAPP’ renders the evidence unreliable, especially given the inherent susceptibility to perception-based misclassification. Throughout both the Call and the Response, the phrase ‘SLAPP’ is defined in nebulous and malleable terms: it is ‘aggressive’ litigation calculated to prevent something called ‘public participation’ and the dissemination of ‘public interest’ journalism. Accordingly, it has the same pejorative quality as ‘wokeness’ or ‘cancel culture’. We see this opaqueness clearly enough, at [263], which says: ‘the Government proposes a three-part test to identify a SLAPPs claim that would be subject to early dismissal’. This ‘three-part test’ is then provided – in four-parts:

‘i. sending a very large number of highly aggressive letters on a trivial matter;

ii. satisfying [sic] that a case relates to a public interest issue, for example (but not limited to) investigating financial misconduct by a company or individual;

iii. that it has some features of an abuse of process, which would be set out in an illustrative non-exhaustive list of factors that are common hallmarks of SLAPPs litigation, for example (but not limited to) sending a very large number of highly aggressive letters on a trivial matter; and

iv. has insufficient evidence of merit to warrant further judicial consideration, for example where a case has no realistic prospect of success’.

The ineptitude of this three/four-part test speaks for itself, not least in the duplication of ‘very large number of highly aggressive letters on a trivial matter’ which appears in both clause i) and iii) – and this sense of triviality is then repeated and augmented in clause iv).

A ‘three-part test’ is also referred to earlier, at [257], and it is possible that it is this test that [263] is referring to. Confusingly, though, [257] refers to the ‘measure’ itself, ie, the ‘new statutory early dismissal process’ (rather than the definition of a SLAPP), which will, we are told, include:

1.  A definition of public interest.
2.  A set of criteria for the courts to determine whether a case should be classified as a SLAPP based on one or more of the common characteristics of such actions
3.  A merit test.

Of course, if this is meant to be a definition of SLAPP then the interplay between clauses i. and ii. is perplexing if, as seems to be the case, the ‘public interest’ at i. is a reference to public interest expression given that that is surely subsumed within the notion of public participation (the PP of SLAPP) at clause ii. Moreover, the apparent concession at clause ii that only one of the common characteristics is required to constitute a SLAPP is also troubling, for it suggests a low threshold for the wrong.

This is made all the more mystifying by the admission, at [265], that there is no such thing as a right to public participation and neither is the government proposing to introduce such a right because it would introduce ‘unnecessary complications and satellite litigation around whether a case constituted public participation or not’.

Plainly, this inability to define the supposed entitlement underpinning the alleged wrong renders these proposals faintly ridiculous. It is all very well for Raab to rattle the sabre with his jingoistic talk of the Response document being the ‘opening salvo against SLAPPs’ and of ‘defend[ing] to the hilt those who bravely speak out in the public interest’ but there is no recognition in this response of a possible misalignment between the perception of public interest of those who provided “evidence” and the view of public interest taken by the law.

For example, when the News of the World published intimate images and reports of Max Mosley’s sex life it did so on the pretext that such information was in the public interest, and maintained that stance at trial even though it was a preposterous claim. Yet, even after the judgment, certain journalists remained adamant that public interest speech had been at stake, eg, Paul Dacre’s claim that Mosley had destroyed the press’s ‘age-old freedom to expose the moral shortcomings of those in high places.’ Accordingly, for a Neville Thurbeck-type, Max Mosley’s sustained litigation against the News of the World, first, through an unsuccessful injunction application, and then at full trial, would be perceived as a SLAPP. Similarly, Piers Morgan might say the same of the Naomi Campbell litigation: speaking after the Mirror lost at the High Court he said: ‘I was under the impression that we had exposed her as a drug addict after she repeatedly lied about it.’

Fourthly, and relatedly, the response puts the greatest emphasis on the recipient’s emotions as evidence of the wrong requiring state intervention. For example, the header to p. 8, which represents a summary of the responses to questions 1-7, is called ‘Evidence and Impact of SLAPPs litigation’ but by p. 14, which provides fuller details (or is meant to), ‘Evidence’ has dropped out of the picture altogether and the section is called ‘Impact on SLAPPs recipients’. The language of this report is almost exclusively perception-based, ie, ‘Respondents reported being profoundly affected by having to answer what they considered to be abusive and meritless legal letters and court proceedings’ ([43], emphasis added) or ‘many respondents spoke of the stress caused by the threat of potentially having to cover [legal fees]’ [44] or that pre-action protocol letters ‘very much seemed to the recipient to be inflammatory, intimidatory and aggressive’ [49], or ‘many respondents… interpreted [letters addressed to them personally to be] a further intimidatory tactic’ [50].

Strangely, the Response displays no recognition that the victims of press malpractice also experience these emotions – and worse – when newspapers unfairly attack their reputation or invade their privacy. What protection will the government offer to those who are wrongly accused of engaging in SLAPPs activity? What will be done to ensure that newspapers themselves do not bully claimants with meritorious claims into submission? The Response is entirely silent on this.

Moreover, although Raab speaks euphemistically of SLAPPs being beyond ‘the rough and tumble of ordinary litigation’, there is nothing in the Response itself that justifies this view. For, as anyone with experience of litigation knows, whether as claimant or defendant, the process is arduous, stressful, and all-consuming. So, when the Response mentions the example of a journalist who ‘described how with every story they published came concern for their family and business’s financial security’ [44] or the journalist who ‘stressed that responding to SLAPPs-style letters or proceedings took up the time that would otherwise be used to investigate and write on issues in the public interest’ [45], it describes, in one foul swoop, the experience of every business owner whose fears of vexatious litigation plagues every aspect of the transactional process, from consumer to supplier to employer disputes. The distinction seems to be that journalists serve the public good more faithfully than anyone else, which is as far-fetched as it is insulting, for surely all business owners who take risk for (the promise of) financial gain serve the public good just as much, if not more, given that they employ others, pay taxes, and help support the supply chain. Why are their litigation anxieties of lesser significance? Plainly, they are not.

Lastly, there are the government’s proposals to tackle SLAPPs through ‘targeted legislative reform’ [261]. The Response contains a series of admissions that, to the uninitiated, provide strong reasons against state intervention. The law contains a suite of measures to ensure frivolous claims are struck out. These includes the need to demonstrate ‘serious harm’ under s. 1 of the Defamation Act 2013, which ‘is working well’ [122]; the ability of defendants to rely upon the truth defence, s 2, which ‘remains an important bulwark’ [127] or honest opinion (s 3), which is also ‘working reasonably well’ [133], or the public interest defence (s 4), which is ‘the natural defence’ in SLAPPs disputes and ‘offers an important issue of principle’ [141].

Moreover, the Civil Procedure Rules contain a range of measures to enable the court to strike out unmeritorious proceedings amounting to an abuse of process. Yet, despite recognising this [174]-[183], the Response still concludes that further measures are needed. The evidence for this is non-existent, which is troubling but, of course, entirely consistent with the government’s approach to SLAPPs generally: ‘We were struck by the fact that, although available, the common law authorities for striking out abusive cases have failed to be consistently applied in SLAPPs’ [182] and ‘Although common law examples were cited, we heard limited examples of where they had been applied effectively in SLAPPs’ [177]. No evidence is provided to justify these assertions.

Problematically, there is no recognition that early dismissal of SLAPPs claims is, of itself, a more involved process than the government recognises. It is all very well for the government to say that legislative reform is necessary to provide ‘quick, efficient and cost-limiting procedure[s] to adjudicate upon SLAPPs’ [183] but the key elements of a SLAPP – that the conduct of proceedings was ‘highly aggressive’; that the basis for the claim was ‘trivial’; that the subject of reporting spoke to a matter of public interest – all require carefully reasoned judicial determinations. Quite how this can be achieved ‘quickly’ is not explained. Moreover, neither is it clear why these concerns are not a feature of all vexatious litigation, which the Civil Procedure Rules contains ample measures to tackle, from its various provision on active case management to the power to strike out statements of case, from costs capping to the power to award indemnity costs due to unreasonable conduct during proceedings.

Whereas the Response seems appealing to the liberal-minded, given its underlying theme of David v Goliath, let us remember that there is nothing in these proposals to ensure that the measures would only apply to the super-rich and could only be relied upon by the vulnerable. My fear, which the Response does nothing to diminish, is that the legacy press could use such measures to further intimidate and silence those least able to defend their rights by mislabelling the dispute as a SLAPP. For whilst we may think that public interest expression is a category reserved only to speech about the rich and famous, IPSO’s adjudications remind us, daily, that it is also the poor and unknown whose lives are ruined by the press, often on spurious ‘public interest’ grounds.

Professor Paul Wragg, Professor of Media Law, University of Leeds.  Author of A Free and Regulated Press (Hart, 2020)