Just what exactly is the Government proposing in its recently published Response to the Call for Evidence on Strategic Lawsuits Against Public Participation (SLAPPs)? As one commentator on this forum has pointed out, the ‘devil is in the detail’ of the Response, and the suggested reforms raise ‘more questions than answers’. This is not to question the existence of SLAPPs, or to cast aspersions on the sudden willingness for public debate on the issue.

The wheels of justice turn slow and civil proceedings can be eye-wateringly expensive in England and Wales. Those with the means and temerity to do so can, and do, use that to ‘harass, intimidate and financially and psychologically exhaust’ those who would speak out in the public interest. Moreover, the Government’s Response can be commended where it is measured and balanced. The Government rejected, for example, ideas of a reversal of the burden of proof and an actual malice standard in defamation on the basis that it would ‘recalibrate the current balancing of Claimant/Defendant rights to a disproportionate degree’ [159]. But valid questions remain about the ‘quick, efficient and cost-limiting’ early dismissal mechanism at the heart of the proposed reforms [183]. Absent crucial details about how the early dismissal mechanism would work in practice, we are left to fill in the blanks, and doing so with an eye on the Government’s other, grander, legislative proposal introduced this summer—the Bill of Rights Bill—leads to some disturbing conclusions about what all this may mean for the right to privacy, reputation included.

The new statutory early dismissal process is designed to ‘strike out SLAPPs and avoid lengthy SLAPP litigation’ and is to be made up of three stages: (i) a public interest test, (ii) a set of criteria to determine whether a case should be classified as a SLAPP, and (iii) a merits test [257]. Each stage is problematic, and worth examining in the context of clause 4 of the Bill of Rights Bill which provides that: ‘When determining a question which has arisen in connection with the right to freedom of speech, a court must give great weight to the importance of protecting the right.’ While clause 4 is not without problems itself, it does give us some insight into how the Government wishes to reset the balance between freedom of speech and its competing rights, and this is just what is needed to troubleshoot each stage of the proposed early dismissal mechanism.

Stage 1: The Public Interest Test

As the first stage in the process, the Government proposes a public interest test. We are told it will be a ‘test the courts would use as a first order barrier to determine whether or not a claim should proceed’ [20]; a ‘definition of public interest’ [257]; a ‘statutory definition’ [258]; a test to assess whether ‘a case relates to a public interest issue, for example (but not limited to) investigating financial misconduct by a company or individual’ [263].

What we are not told is how the test would work in practice. But the Government does leave a puzzling clue. Rejecting the EU model of a statutory definition of ‘public participation’ on the basis that it would be ‘too broad’ [85], the Government suggests instead that the public interest test in the early dismissal process will reflect the ‘well established existing tests around the public interest’ already in use by the courts in England and Wales [105]. So, we are talking about a broad (but not ‘too broad’) statutory definition of public interest that reflects the well-established need for a flexible and fact-sensitive approach to the question in the existing law? Has the Government thought this through?

Such a statutory definition is, for example, most strikingly at odds with the approach in defamation law. After a brief period of the courts treating the factors listed by Lord Nicholls in Reynolds as a checklist, a series of judgements made a point to correct the mistake and called instead for a more flexible and fact-sensitive approach to the public interest test. In Jameel, the House of Lords emphasised that the public interest test must be ‘applied in a practical and flexible manner’, with ‘regard to practical realities’ [56]. In Flood, Lord Phillips pointed out that the question of public interest is ‘not a black and white test’ [30].

These developments were codified by s 4 of the Defamation Act 2013. The Act does not set out any fixed definition of public interest, and s 4(2) provides instead that in determining the question, ‘the court must have regard to all the circumstances of the case.’ In application, the courts have only developed the flexible and fact-sensitive approach to the test. Thus, the Court of Appeal in Economou underlined the need for ‘practicality and flexibility’, and emphasised that, ultimately, ‘all will depend on the facts’ of the case [110]. In Serafin, Lord Wilson giving judgment for the Supreme Court, held that any ‘reference to a checklist is now inappropriate’, before reverting the case back to trial for a more flexible approach, sensitive to the particular facts of the case [75].

But it is not just defamation; the flexible and fact-sensitive approach is also well-established in other areas of law that deal with the objective question of public interest. In the judicial review case of R (Calver) v Adjudication Panel for Wales and another, for example, Bateson J pointed out that the ‘fact-sensitive approach means that there is no rigid typology’ for determining freedom of expression in the public interest [57]. In the Misuse of Private Information case of Sicri, Warby J warned that ‘context is always important’ and that ‘a broad brush’ approach to the question of public interest ‘would be at odds’ with the well-established requirement for an ‘intense focus’ on the specific facts of the case. [65], [66].

So, how does the Government propose to achieve a statutory definition of public interest for quick and efficient dismissal, and yet still reflect the ‘well established tests around public interest’ in the law? The two approaches are not merely divergent, but seem fundamentally opposed.

Perhaps—and here we can only speculate, but considering the ominous prospect, such speculation is necessary—when the Government says the new public interest test will be based on the ‘existing’ law, it means the law that would exist, if and when the Bill of Rights Bill is passed into law. If clause 4 of the Bill of Rights Bill was to pass parliamentary scrutiny, the thinking may go, then it would establish the primacy of freedom of speech and clear the way for a broad statutory definition of public interest, without the need for an intense focus on the specific facts of the case.

The Government already admits that the test should not be ‘too broad’. But could the Government be contemplating something along the lines of the definition adopted in the New York anti-SLAPP statute: ‘“Public interest” shall be construed broadly, and shall mean any subject other than a purely private matter’? It may seem a bit fantastic, but the Government promises ‘radical’ reform here, and the view may exist in the Office of Deputy Prime Minister or wherever these decisions are taken, that the Bill of Rights Bill will bring about the constitutional change to allow such a broad definition to operate in England and Wales, much as it does in New York: granting ‘great weight’ to freedom of speech, while reserving some protection for what is obviously a purely private matter, i.e., without the need for an intense focus on the facts of the specific case.

If the Government is quietly eyeing such a possibility, however, there is just one problem: How will the courts determine what the ‘great weight’ of public interest speech is under the circumstances, and what is ‘purely private’? (And, unless the Government intends to exclude any and all competing rights to freedom of speech, this problem will arise in some form with any broad statutory definition of public interest in England and Wales.)

As Rowbottom has recently pointed out, clause 4 may have limited effect in practice, for it is not simply a matter of establishing the ‘great weight’ of freedom of speech. The courts must still determine what the ‘great weight’ should be on the specific facts of the case, and the weight that should be given to its ‘competing factors’. Nothing in clause 4 appears to change this well-established contextual approach.

This applies equally to any new public interest test. A court applying the proposed first stage of the early dismissal mechanism would still need to determine the weight of the public interest and the weight of its competing factors, and this would still require the flexible and fact-sensitive approach that is well-established in the law. Thus, to take the New York example in the context of clause 4, a court would still need to engage in scrutiny of the specific facts to give ‘great weight’ to the public interest, and to give regular weight to any reasonable expectation of privacy. Such a broad statutory definition of public interest would simply not work in England and Wales as it does in New York.

Nothing in either clause 4 or the proposed statutory definition of public interest does anything to change this. Perhaps that is what the Government means when it says the new test will reflect the ‘well established’ law. But why go to the trouble? All it will likely achieve is to make the law more uncertain, which ironically may lead to more, not less, abuse of process. 

Stage 2: Set of SLAPPs criteria

For the second stage of the early dismissal mechanism, the Government proposes ‘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.’ [257]. This is presented as a test of whether a claim 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’ [263]. The Response seems to limit these factors to ‘procedural components’, which is certainly more appropriate than any inclusion of substantive rights, and an improvement on the current judicial definition which limits SLAPPs to substantive defences which are hard for defendants to reach in proceedings, never mind prove.

But once again, crucial details are lacking about how the test would work in practice. Will it take just ‘one or more’ of the listed criteria to qualify the claim as a SLAPP, or does ‘some features’ mean more than one? How many is a ‘very large number’? How to distinguish what is ‘aggressive’ in this context? What is meant by ‘trivial’?

Again, the questions only point to the need for flexibility and fact-sensitivity in the test. Indeed, the more obvious solution at this stage is to adopt a relatively simple definition of a SLAPP claim and to provide instead for the flexibility of the court to determine whether, on the specific facts of the case, it classifies as a SLAPP. The courts could simply be more alert to the problem, and guided to its common characteristics, without reliance on it as a checklist. Such an exercise does not have to be trial-heavy, and may even often be judged on pleaded and judicial facts. Yet, the Government seems to rule out such a flexible approach to the question on the basis that it ‘would prevent meritorious claims from proceeding’ [95]. But why? If carried out on a practical and reasonable basis, a flexible and fact-sensitive approach should only better ensure that meritorious claims proceed. There is no explanation in the Response.

But if we look again at this through the glass of clause 4, more problems begin to emerge. Clause 4 clearly aims to reset the balance of rights, and it may be seen as the basis for a more rigid, quick and efficient criteria test, based on a checklist of factors. Again, we can only speculate, but the view may be that, once the courts can give ‘great weight’ to freedom of speech, there will be no need to strike a fine balance of rights, and less need for flexibility in the test.

There are problems with this too, though, if the Government is still worried about ‘meritorious claims’ proceeding. There will clearly be cases where a claimant will engage in at least one common characteristic of SLAPP claims, and yet on fair hearing be still considered to have a reasonable expectation of privacy or protection of reputation. There will even be cases which engage multiple characteristics of SLAPPs, and yet where it would still be misleading to classify them as such. What about cases, for example, where the claimant is an impecunious litigant in person, who through sheer ignorance or poor judgment engages in various forms of abuse of process? Such a claim may be justly struck out on application—that will depend on the facts—but should it automatically be classified a SLAPP, and therefore subject to the apparently higher threshold of the early dismissal mechanism? That would seem unfair to such claimants, when expensive lawyers so often make skilful use of legal procedure to advance their client’s interests, even when the claim may only enjoy a fanciful prospect of succeeding at trial.

This is not to add inequality of arms as another definite characteristic SLAPPs, but simply to underline the complexity of the question in practice, and the need for fact-sensitivity in response. SLAPPs are difficult to identify precisely because they are buried in the factual and procedural details of the case. There is no proportionate solution in using a formal checklist to block out a range of cases, some genuine SLAPPs, some not. 

Stage 3: Merits test

The final stage of the proposed early dismissal process is a ‘merits test’ [257] to exclude those cases with ‘insufficient evidence of merit to warrant further judicial consideration, for example where it has no realistic prospect of success.’ [263]

As has been pointed out, we already have such a mechanism for early dismissal in the provision for summary judgment, and indeed the formulation bears strong similarities to the wording of CPR rule 24.2. But we cannot assume the Government is ignorant of the duplication, or indeed that the proposed merits test will seek to emulate the current provision for summary judgment. In its response to questions about the mechanism to strike out claims in the existing law, the Government concludes that ‘the common law authorities for striking out abusive cases have failed to be consistently applied in SLAPPs’, and that ‘more fundamental reform, such as the introduction of an early dismissal mechanism, will be needed.’ [182] Granted, that relates explicitly the striking out mechanism provided under CPR rule 3.4(2)(b)—the Response does not directly address the existing provision for summary judgment—but we can assume the Government is equally disappointed with the similar, but more evidence heavy, provision for summary judgment.

The Government is wrong, however, to conclude that these ‘common law authorities’ have ‘failed to be consistently applied in SLAPPs’. The problem is not that they have failed to be consistently applied, but rather that they are not altogether appropriate for dealing with SLAPPs. In the interest of access to justice and a balance of rights, the courts consider it a ‘serious thing’ to strike out a claim under the existing provisions, and it is rare that an application for such succeeds. That itself is fair, but the problem for SLAPP defendants under the existing provisions is that they must carry the burden and shoulder the cost of any failed application for early dismissal. That must indeed have some chilling effect on such defendants.

Therefore, the idea that a claim carefully identified as a SLAPP would be automatically subject to a merits test, which the defendant need not apply or pay for, is not altogether unwarranted. But any more ‘fundamental’ reform than this, the Government should not pursue. It would be folly, for example, to suggest that the ‘great weight’ of freedom of speech would make it a less ‘serious thing’ to grant early dismissal to a claim—even one identified as a SLAPP. Considering the likely difficulties of identifying both public interest and SLAPP criteria in a quick and efficient mechanism, it will remain a serious thing to dismiss claims without some degree of certainty that the claim is bound to fail. The possibility of more fundamental reform only returns us to the core problem with the Government’s proposed early dismissal mechanism: the potential exclusion of too many claimants who on proper hearing would be judged to have a meritorious claim.

 Conclusion

All things considered, a better approach to the problem of SLAPPs may be a flexible and fact-sensitive approach to both the public interest test and the criteria test, with an automatic and cost-protected merits test at the end, albeit where the court would still consider it a serious thing to strike out the claim. That would require less legislative reform, and much might even be achieved in that direction within the four corners of the existing law—for example, through strict observance of practice directions, Jameel jurisdiction, seriousness thresholds, and a more streamlined and preliminary public interest test. Such an approach may not only be effective in dealing with SLAPPs, but would also be a more proportionate response to what the Government admits is a ‘small cohort of cases’ [143]. In juxtaposition, the Government’s proposal for an early dismissal mechanism appears to be taking a sledgehammer to crack a nut.

But then maybe that is just what the Government is hellbent on doing. With plans afoot for greater constitutional reform and such a conspicuous lack of detail in the Response, we cannot rule out that the Government’s proposed anti-SLAPP reform is a collateral attack on ‘creeping judicial-made privacy law’, and therefore something of an abuse of process itself.

Dr Mark Hann is an Assistant Professor of Media Law at Durham Law School