There is much discussion regarding SLAPPs in the media law world. Last week the newly formed Society of Media Lawyers wrote to the President of the Law Society asking to see the evidence on which it was relying for its general support for anti-SLAPP measurea.
The Economic Crime and Corporate Transparency Act 2023 received Royal Assent on 26 October 2023 including at sections 194 and 195 the first provisions in UK law (which are not yet in force) expressly to deal with so called “strategic litigation against public participation” (or “SLAPPs”). There was an Inforrm post about this. And also last week, a new book was published, “Buying Silence: How oligarchs, corporations and plutocrats use the law to gag their critics”, setting out veteran media lawyer David Hooper’s analysis of the 50-year history of “SLAPP” actions and proposals for change.
Most recently, a new proposal as to how to deal with the “SLAPP problem” was advanced by Bar Council Chair, Nick Vineall KC, with the enthusiastic support of well known media lawyer, Mark Stephens. Supporting Mr Vineall’s proposal, Mr Stephens went as far as to say that “I have my breath taken away by its ingeniousness”.
The proposal is only sketchily set out. Mr Vineall is quoted as describing it in this way
‘Many SLAPPs cases start, irrespective of cause of action, with what is in effect a threat of an injunction, a threat to silence. It may not actually go to court, but what in substance is being sought is an interim injunction.
‘Why can we not have a system in which you have to give a cross-undertaking in damages? So you have a potential liability of damages – not for the damage you caused the defendant, but [for] damage to the public interest. The public interest is damaged by not having access to information which should never have been restrained, while the reputation of the claimant is unjustifiably protected for a period because something which ought to have been said about them is not said for a period of time, and sometimes of course for ever.
‘Why not give the court a power in such a case, when it turns out that the injunction or silencing should never have happened, either to award damages based in some way on the damage to the public interest of the pro tem silencing, or perhaps on a restitutionary basis, based on the unjustified benefit to the claimant during the period of the silence?’
So although he takes his point of reference the cross undertaking in damages for an injunction, the proposal advanced by Mr Vineall would introduce at least two innovations. Firstly, it would apply not just to injunctions restraining publication but any action which involved “silencing”. Such “silencing” could presumably include the situation where a potential publisher was dissuaded from publishing allegedly defamatory material after receiving a letter of complaint.
Secondly, the potential damages to be paid would include not just losses incurred by the publisher by the non-publication but something additional either to reflect the harm occasioned to the public interest from non-publication or on a restitutionary basis for the complainant to account for the benefit he or she has received from the non-publication.
The proposal may be “ingenious” and, in Mr Vineall’s words, “theoretically sound” but is, unfortunately, also fraught with difficulties.
First of all, it would apparently create potential liability for merely sending a letter of complaint. This is, to say the least, unusual. The only possible parallel is the “threats” regimes for complaints in relation to trade marks, patents or designs for example under section 21 et sequia of the Trade Marks Act 1994. But those regimes are highly constrained. To create potential liability on a party merely for advancing a complaint about content on reputational grounds which then has the effect of deferring or deterring publication would be highly unusual and difficult to work in practice. The publisher would, presumably, in order to recover the envisaged damages have to bring proceedings of their own in which they contended that the threatened but withdrawn publication was lawful. The complainant would obviously be entitled to argue the contrary. In other words, the publisher would then be in the position of fighting the very contested claim which it sought to avoid by not proceeding with the publication. This makes no sense at all.
Second, if the proposal were confined merely to injunctions, then it would be of no practical value in the context of actions which are described as SLAPPs. A number of recent media claims have been characterised as SLAPPs (although without supporting judicial determinations) but none have ever involved a successful application for an interim injunction. There are two good reasons for that. First, the rule in Bonnard v Perryman makes interim injunctions very difficult where (as would almost always be the case in a putative SLAPP), the primary cause of action is defamation. Second, if a person is seeking improperly to intimidate a journalist or a media organisation to silence them, the last thing he would want to have is some judicial oversight at an early stage. So interim injunctions are almost entirely irrelevant in SLAPP cases.
Third, the proposer appears to be oblivious to the fact that in media law there are defences other than truth. Say for example a newspaper was proposing to publish allegations concerning an individual and thought it could rely on a public interest defence whether or not truth could be established (this is extremely common). The individual delays publication but something is published and in the resulting libel claim it is found that the public interest defence succeeds although there is no finding that the allegations made are true. In that situation, should the claimant pay damages to the newspaper for silencing them? Is the public interest damaged because what may still be false allegations were not disseminated? And should in such circumstances the claimant have – in financial terms – to give account of the benefit occasioned to him for the non-publication of false material (the publication of which was nonetheless protected by the public interest defence)?
Fourth, how would one assess what – in financial terms – the damage to the public interest was? And even if you could assess this, why should this windfall go to the defendant publisher? By definition it would not be loss that they had suffered.
Fifth, why is this only one way? What if there is no injunction and there is publication of inaccurate material damaging the claimant. It is obvious that the public interest is also damaged by the ongoing publication of false allegations regarding a claimant. Should the claimant receive additional compensation by the same logic for harm to the public interest?
This proposal adds to a chorus of other poorly thought through proposals which have emerged recently in relation to SLAPPs, often based on fundamental misunderstandings of media law. But that does not stop such proposals obtaining traction as we saw with sections 194 and 195.
In fact, there is scant evidence of a major problem with SLAPPs in this country. The problems which do occur are quite capable of being dealt with under our existing legal and regulatory framework. The main issue in relation to media proceedings is not untoward conduct by claimants or their lawyers but the extraordinary complexity and cost of proceedings. Any libel or privacy case these days can often involve trips up and down the appellate ladder in relation to subtle nuances of the case for example in relation to meaning or the scope of defences. Media law has now become a vastly complex and ornate structure with the desire to do perfect justice in every case delaying speedy and effective resolution and leaving no one satisfied.
When the complaints of journalists and media organisations about SLAPPs are analysed more often than not the nub of the complaint is the complexity and cost, not the bad behaviour of the claimants and their lawyers. On this they certainly have a worthwhile point.
But the common problem with many of these proposals in relation to SLAPPs, including those under sections 194 and 195, the one advanced by Mr Vineall is that their main consequence will be simply to add yet further to the complexity and cost of media proceedings. In that way, these proposals are likely to be significantly counterproductive.
These proposals contrast with a suite of measures suggested in David Hooper’s book. Regardless of whether the underlying thesis of the book is accepted, his suggestions are focused and generally sensible.
Mr Hooper’s proposals include that:
- solicitors should carry out proper money laundering checks on defamation claimants, as they do in transactional work (that is presumably that a reputational claim would be considered to be within the “regulated sector” for the purposes of Part 7 of the Proceeds of Crime Act 2002);
- solicitors should be required to verify the facts in letters of claim and to set out in detail the facts relating to their client’s position regarding the matter of complaint, rather than simply asserting that the article was false and defamatory based on what their client has told them;
- the claimant should spell out why the offending article is likely to cause them serious harm and, if appropriate, why they have not sued in respect of previous, similar allegations;
- if individuals such as journalists, academics or whistle-blowers are threatened with action, it should be explained why they have been singled out and, if appropriate, why their employer or other persons responsible for the publication have not been proceeded against;
- if the complaint involves foreign parties or events which took place abroad, the letter should outline in reasonable detail why the courts of England and Wales are the appropriate place to bring a complaint; and
- the letter of complaint should detail proposals and a timetable for resolution, including possible mediation.
There may be some devil in the detail here, for example in relation to the extent to which a solicitor can properly verify the facts asserted in the letter of claim, particularly when, as is frequently the case, the letter must be prepared quickly in light of short deadline prior to publication. But by and large these appear to be practical and sensible proposals which are likely to be able to find broad consensus among practitioners. Indeed, many of them are what experienced practitioners would do anyway at present.
The contrast between these competing measures is instructive. Informed proposals have great potential of addressing the concerns which have arisen while being practical. Uninformed proposals will only take us backwards.
The considerable campaigning energies of the anti-SLAPP lobby should, perhaps, be directed towards devising and/or promoting measure such those put forward by Mr Hooper which facilitate disputes relating to publications being speedily and effectively resolved.