The Private Member’s Bill on SLAPPs, introduced by backbench Labour MP, Wayne David, has had its second reading in the House of Commons. The “Strategic Litigation Against Public Participation Bill”, sets out to make a generalised anti-SLAPP provision, very much in line with the provisions in sections 194 and 195 of the Economic Crime and Corporate Transparency Act 2023 (“ECCTA”) which were confined to allegations relating to “economic crime”.
Both the Bill and the ECCTA provisions respond to what the Ministry of Justice describes as the emergence of “a distinctive and often procedurally disruptive form of litigant … using legal action to harass, intimidate and silence those who question their conduct”. But it is not clear what litigation is being referred to here. Various groups like the Campaign against SLAPPs in Europe (“CASE”) produce figures for what are described as SLAPPs cases in the UK and elsewhere, but it is often difficult to identify the cases being referred to. When cases are identified , many turn out not to be SLAPPs at all, but simply onerous pieces of media litigation. These are without doubt highly burdensome on the journalists who are sued but that is a result of the complexity of the law and the costs of litigation in England and Wales rather than of misconduct on the part of the claimant or their lawyers. The Ministry itself has not identified a single case which it considers to be a SLAPP.
But leaving aside the lack of proper evidential basis for these reforms, unfortunately they are so poorly formulated that they are unlikely to offer any solution. Rather they will add yet more uncertainty, complexity and cost to libel litigation and will have a range of adverse consequences, which do not appear to have been foreseen by their proponents. Four potential scenarios arising from these reforms set out in Part 2 of this post..)
The test for designation as a SLAPP
The Bill is designed to deal with actions designated as “SLAPPs”. The consequence of such a designation are dealt with in clause 1 which is addressed below. But at the centre of the Bill is the test as to what constitutes a “SLAPP”. This is set out in clause 2 as follows:
“(a) For the purposes of section 1 a claim is a “SLAPP claim” if— (a) the claimant’s behaviour in relation to the matters complained of in the claim has, or is intended to have, the effect of restraining the defendant’s exercise of the right to freedom of speech,
(b) the information that is or would be disclosed by the exercise of that right relates to a matter of public interest, and
(c) any of the behaviour of the claimant in relation to the matters complained of in the claim is intended to cause the defendant—
(i) harassment, alarm or distress,
(ii) expense, or
(iii) any other harm or inconvenience,
beyond that ordinarily encountered in the course of properly conducted litigation.”
That is broadly (a) the case must affect the defendant’s freedom of speech; (b) that speech must relate to a matter of public interest; and (c) some behaviour of the claimant (at any point) must be “intended” to cause distress, inconvenience etc to the defendant.
This test is similar to the one which is found in the ECCTA provisions. It is important to note at the outset that a SLAPP does not have to be any abuse of the court’s process as such. If the “behaviour” of the claimant at any point contravenes these provisions then an action brought because the claimant genuinely thinks they are being horribly defamed and they have no option but to bring the claim and which has been brought strictly in accordance with the court rules can nevertheless be designated as a SLAPP.
A number of specific points about the clause 2 definition require further comment.
Freedom of speech – Clause 2(1) refers to the “behaviour [on the part of the claimant which] has, or is intended to have, the effect of restraining the defendant’s exercise of the right to freedom of speech”. Clause 2(2) then provides that: “any limitation prescribed by law on the exercise of the right to freedom of speech … is to be ignored.” So presumably it does not matter that the law would actually prohibit the publication of the material in question (perhaps because it is libellous and untrue or is confidential information or even publication would constitute an offence under the Official Secrets Act) the defendant is to considered for these purposes to have an absolute “right” to freedom of speech (contrary to the express terms of Article 10).
Intended – The key test for a claim to be designated as a SLAPP appears in clause 2(1)(c) of the Bill . This is the same wording as in the ECCTA. The problems with that wording remain. In particular, what does “intended” mean here. If a claimant takes a step, such as serving a request for further information or seeking an interim order, where the intention may be simply to further their own interests but the effect is to cause distress or inconvenience, is the test met? Must the intention to cause distress or inconvenience etc be the predominant intention on the part of the claimant (even in the most vituperative of litigation it is unusual for a party to take a step with the principal intention of causing trouble for the other side) or merely an ancillary intention or perhaps even just the inevitable consequence of a step taken for an entirely proper reason?
And how is the court to make findings as to the intention of the claimant in such cases? This may lead to complex questions of the extent of the protection of legal privilege. A claimant may in seeking to resist a designation as a SLAPP wish to rely on advice from their legal team setting out the reasons for the behaviour in question. But the defendant may say that this might be incomplete and want to have the full advice disclosed. This runs contrary to the strong protections provided by law for legal privilege. But how can real assessment of the “intention” of the claimant be undertaken without seeing this material.
“In relation to the matters complained of in the claim” – And when must the behaviour in question occur? Some behaviour in the thick of litigation, such as a tendentious Request for Further Information or an exorbitant disclosure request would plainly qualify. But what about pre-action correspondence? And what about conduct which does not form part of the litigation – for example pre-publication responses by public relations advisors? Is this to be taken into account?
“Ordinarily encountered in the course of properly conducted litigation” – It is very hard understand how the court will assess whether the behaviour in question was or was not “ordinarily encountered in the course of properly conducted litigation”. Is this to be taken at a highly generalised level by the court or is this a matter of evidence? If the latter, this would enormously complicate such applications.
Moreover, what is objectionable (from a public policy perspective) about conduct which has not hitherto ordinarily been encountered in litigation? The law is constantly developing. In the past 20 years in the media field we have seen the establishment of the law of privacy and more recently the extension of that to police investigations. All of these developments required people taking cases (that is behaviour) which has not been “ordinarily encountered” in litigation. And there are new frontiers in media law, for example in relation to seeking pre-publication injunctions in defamation matters. Those have been traditionally considered to be almost unavailable (under the rule in Bonnard v Perryman) but there are judicial stirrings that this may be old law. But is a claimant who wishes to test the waters in this area at risk of having their cases designated as a SLAPP simply because it is novel? Media defendants may abhor any steps to seek to move the substantive law in this area away from them. But it is hard to understand a public policy reason to support that.
And of course this is completely asymmetrical. Defendants in media proceedings can take any approach and seek any litigation innovation without being any such risk.
Clause 2(4)
Guidance as to the test under clause 2(1)(c) is given by clause 2(4) which provides:
“(4) In determining whether any behaviour of the claimant falls within subsection (1)(c), the court may, in particular, take into account—
(a) whether the behaviour is a disproportionate reaction to the matters complained of in the claim, including whether the costs incurred by the claimant are out of proportion to the remedy sought;
(b) whether the defendant has access to fewer resources with which to defend the claim than another person against whom the claimant could have brought (but did not bring) proceedings in relation to the matters complained of in the claim;
(c) any relevant failure, or anticipated failure, by the claimant (or a person acting on behalf of a claimant) to comply with a pre-action protocol, rule of court or practice direction, or to comply with or follow a rule or recommendation of a professional regulatory body.”
But it is a little hard to see how these matters truly inform the test under clause 2(1)(c). In particular, how does whether the claimant having greater or fewer resources than the defendant affect their intention or whether the behaviour is in any way out of the ordinary?
Further assistance is provided by clause 2(5) which states:
“For the purposes of subsection (4)(c) a failure, or anticipated failure, is “relevant” so far as it relates to—
(a) the choice of jurisdiction,
(b) the use of dilatory strategies,
(c) the nature or amount of material sought on disclosure,
(d) responses to requests for comment or clarification,
(e) the use of correspondence,
(f) making or responding to offers to settle, or
(g) the use of alternative dispute resolution procedures.”
The inclusion of “responses to requests for comment or clarification” suggest that the relevant behaviour can stretch back to the solicitation of comment by the journalist and is thus very broad. But in what circumstances would the failure to provide comment or clarification to a journalist be indicative of an “intention” to cause distress or inconvenience.
Equally, offers to settle are usually without prejudice and so inadmissible. Are the rules exceptionally to allow the admissibility of such offers on a SLAPP hearing and if so on what basis?
In all these aspects, these provisions appear poorly thought through, extremely unclear in their effect and this likely to lead to substantial time-consuming and expensive satellite litigation irrelevant to the basic question in a libel action: has the claimant’s reputation been wrongly damaged by the defendant’s publication.
The public interest
Under clause 2(3) the following matters are deemed “in particular” to be of public interest:
- “behaviour of the claimant or any other person that is, or is alleged to be, unlawful” – this is an extremely wide category, anything from serious crime through to minor regulatory infractions;
- “statements made by the claimant or any other person that are, or are alleged to be, false” – this means that for these purposes there can be a public interest in making serious allegations or revealing private information about the claimant (see scenario 1 below) simply on the basis of a statement alleged to be false made by another person;
- “public health and safety, the climate or the environment” – it is unclear what media cases would be based on such matters, these do not typically form the basis of defamation or privacy complaints;
- “an investigation or review being undertaken by a public body” – this would appear to be wholly inconsistent with the decision of the Supreme Court in ZXC v Bloomberg which held that there was a reasonable expectation of privacy in police and other investigations and there was no inherent public interest in reporting on them.
Another unsatisfactory aspect of the Bill here is that although the words complained have to relate to a matter of “public interest” (as defined), the publication (or proposed publication) of those words does not actually have to be to the public as such, these provisions apply to private defamations as much as it would to public ones (a private libel is one sent to a select number of people, for example an email sent to colleagues of the person defamed, rather than published as an article in a newspaper or magazine). This is despite the fact that the title of the Bill suggests that it is intended to apply only in respect of litigation which was to deter “public participation”.
The potential application to private defamation is particularly problematic since the context of such matters is often a continuing vexatious relationship between the parties, where it is likely that the defamed party may say something to the other which triggers the designation of an subsequent legal claim as a SLAPP, even if the other party has said much worse things (see scenarios 3 and 4 below). Such language from the defamer may have no consequence in law, a response in similar terms from the defamed party risks designation as a SLAPP.
This yet further illustrates how poorly thought through these provisions are and that there are potentially many unintended consequences.
The court rules
The answer to some of the uncertainties may be found in the court rules to be issued which under clause 1(2) of the Bill may include:
“(a) rules for determining the nature and extent of the evidence that may or must be considered;
(b) rules about the extent to which evidence may or must be tested;
(c) rules permitting or requiring the court to determine matters of fact by way of presumptions.”
These are unusually substantive for court rules. For example, if the rules provides that if certain behaviour is likely to cause distress or inconvenience, then it is to be presumed (subject to contradiction) that this was intended, this will make an enormous difference to the application of these provisions.
The consequences of being designated a SLAPP
The Bill (as the ECCTA provisions) sets out two consequences for a case being designated a SLAPP.
The first consequence appears in clause 1(1) as follows:
“(1) The power to make Civil Procedure Rules must be exercised so as to secure that Civil Procedure Rules include provision for ensuring that a claim may be struck out before trial where the court determines—
(a) that the claim is a SLAPP claim … , and
(b) that the claimant has failed to show that it is more likely than not that the claim would succeed at trial.”
In other words, if a defendant can persuade the Court that a claim falls within the vague definition in clause 2, the burden then shifts to the claimant to show that the claim has a greater than 50% chances of success. One might initially think that is fair enough. Why should a claimant be able to proceed with any media claim unless they can show they are likely to win?
But that is a burden imposed upon such claimants which is not imposed in any other form of litigation. And the difficulty is that cases change, apparently unpromising claims can become good, new lines of argument can open up, new material can appear.
Take for example where a defendant in a defamation action can at an early stage put forward an apparently credible witness who says that they can attest to the truth of the allegations made. It may be that if the action proceeds, in time the credibility of that witness can be powerfully undermined. Or it may be that an apparently respectable journalistic investigation, seemingly making good a public interest defence, can in due course be undermined by material which is revealed on disclosure. In these situations, if the case is struck out under these provisions, the claimant’s opportunity to challenge the defendant’s case will be taken away and serious false allegations will go uncorrected.
The second consequence appears in clause 1(4) as follows:
“The power to make Civil Procedure Rules must be exercised so as to secure that Civil Procedure Rules include provision for ensuring that, in respect of a SLAPP claim, a court may not order a defendant to pay the claimant’s costs except where, in the court’s view, misconduct of the defendant in relation to the claim justifies such an order.”
The first thing to note is that this provision applies only where the claimant has been able to show that they are more likely than not to succeed in the claim. So a claimant with a meritorious claim is unlikely to be able to recover their costs.
Moreover, this will not deter the caricature “oligarch SLAPP claimant” who does not worry about legal costs but it would mean that defamation claimants who are not well resourced would be most unlikely to pursue meritorious claims. This seems to be the opposite of the intention of the advocates of SLAPP legislation. The class of claimants this provision will most obviously affect will be more impecunious claimants with well founded complaints who engage lawyers on the basis that they are likely to be able to recover the costs of doing so from the defendant. But because of a misstep on the part of the claimant, say before they instructed lawyers, the case is designated as a SLAPP and this is impossible. This will effectively deny the claimant their rights in even the most obviously meritorious of cases.
Gideon Benaim is Partner in Simkins LLP and the Chair of The Society of Media Lawyers.
Part 2 of this post will consider further problems with the Bill and will be published tomorrow
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