The first and most obvious problem with the Bill is that it does nothing to address the most common scenarios and concerns in SLAPP cases. In particular: the problem of a imbalance of resources between wealthy claimants and individual journalists and the problem of legal complaints made in relation to what are, in fact, true allegations.
Wealthy claimants – no doubt wealthy claimants with reputation concerns will continue to be able to engage specialist lawyers from the outset who can be careful that no step will be taken which would mean that the action could be deemed to be a SLAPP. These provisions will do nothing to diminish the cost and inconvenience heaped upon the defendant journalist, indeed probably they will add to them. Defamation and other media proceedings – even when conducted with scrupulous propriety – are already inherently extremely complex, cumbersome and expensive.
Indeed it is hard to avoid the conclusion that that the intrinsic complexity and cost of these media case has been a principal driver of the concerns which have arisen. Take two recent cases, that of Aaron Banks defamation case against the journalist, Carole Cadwalladr, and the actions brought by a number of wealthy Russians against the author, Catherine Belton, and the publisher Harper Collins over allegations in Belton’s book, Putin’s People.
Mr Banks’ claim was successful (on appeal) and his case was expressly described as not being a “SLAPP” by the first instance judge. The actions over Putin’s People resulted in a number of substantive modifications being made to the text of the book to the satisfaction of the claimants. In neither case has there been any behaviour ever identified on the part of the claimants of their advisers which could be in any way described as improper or could conceivably trigger designation as SLAPPs under these provisions. (That has not stopped both cases frequently being described as SLAPPs.) But both of these actions would certainly have continued if the Bill had been in force. The resources available to the claimants in such cases can mean that they can instruct specialist lawyers who will take great care to avoid the new pitfalls. By contrast, potential claimants with limited resources, unable to engage specialist lawyers, are much more at risk of making a critical error leading to their cases being designated as SLAPPs with all the consequences highlighted in Part 1.
Legal complaints in relation to true allegations – one common concern in the area of SLAPPs is complainants making complaints in relation to allegations contending that they are false but it turns out that their protestations were completely disingenuous and the allegations in question are wholly true. In such cases, there is something particularly galling about the brazen way in which some people will claim that black is in fact white and true is in fact false. In a number of cases, individuals have admitted that the denials issued through their solicitors were, in fact, false.
The Solicitors Regulation Authority has issued a Warning Notice emphasising that solicitors must not advance meritless claims and it seems that where possible claimant lawyers are seeking to exercise as much due diligence as they can to ensure that they do not inadvertently participate in making entirely meritless complaints in reputation cases. But what is clear is that the provisions in the Bill do nothing in such cases.
Indeed, it is very hard to think of any case which has been characterised as a SLAPP to which these provisions would have any effect. As explained in this piece (and particularly by reference to the scenarios set out below), they are likely to have many adverse and unintended consequences effects, but the benefits seem illusory. The supporters of the Bill should at least identify one supposed SLAPP case in which these provisions would make a difference. None have been identified so far.
Some consequences
In short, these provisions introduce further uncertainty into the law. They will add cost and complexity to media litigation without actually addressing any of the issues identified by campaigners. This can best be seen by reference to four highly plausible scenarios as follows.
Scenario 1
A young woman has struggled with mental health problems and has therapy. She has a brief affair with a Government minister which then becomes public. The minister denies that she was suffering from any vulnerability. A tabloid journalist gets hold of the notes of her therapy sessions and proposes to publish them. When the journalist approaches the young women she responds extremely aggressively, sending him (without legal advice) numerous emails and saying expressly she will sue him and make him suffer for what he has done. The journalist is distressed and threatened.
She cannot afford to pay a lawyer but she finds a lawyer who will act on a conditional fee agreement (a “CFA”), that is if the case is successful, the lawyer will recover his costs from the journalist and his newspaper. She is advised to apply for an injunction to prevent publication of the material. The newspaper makes a cross application for the designation of the claim as a SLAPP based on her pre-action emails. It plainly satisfies the definition in clause 2(1). The judge has no choice but to designate the case as a SLAPP. As a consequence, with no possibility of any costs recovery, the CFA entered into by her lawyer in unviable and they cease to act. She is left without representation and in this complex area of law it is unfeasible for her to continue. Her case collapses and the newspaper is free to publish.
Scenario 2
A well-resourced claimant brings a libel claim in respect of a newspaper article which makes serious allegations about him. He claims the allegations are false and that the investigation undertaken by the newspaper would so inadequate that the public interest defence at section 4 of the Defamation Act 2013 would not apply. The newspaper serves a defence which includes a truth and section 4 defence.
At the Case Management Conference, the judge suggests that in light of the correspondence from the claimant’s solicitors, the case may be a SLAPP and on her own motion orders a hearing for a determination. This becomes extremely hard fought with multiple witness statements and separate satellite litigation as regard the extent of the protection of privilege for the correspondence between the claimant and his solicitor. In the event it is determined that the case is not a SLAPP because the defendant was unable to show that the claimant has the requisite “intention” in respect of his behaviour (or more strictly the behaviour of his solicitors). The claimant is awarded his costs of the application which are very substantial. The application has delayed proceedings by one year.
Shortly after the case settles with the newspaper printing a clarification and paying a small sum in respect of the claimant’s costs (over and above the much greater sum ordered in respect of the SLAPP hearing).
The net result of the SLAPPs hearing is thus significantly to increase the costs for the defendant newspaper and to delay both the process of the litigation and the possibility of settlement.
Scenario 3
An academic in a controversial area of study has written a book for publication. She submits the book to a number of publishers but to her surprise it is repeatedly rejected. In desperation, she serves data subject access requests on the publishers and finds that each has received repeated emails – which she considers to be wholly untrue – from a rival academic accusing her of serious academic fraud and plagiarism.
A few days after receiving this information she attends an academic conference where she encounters this rival academic. Still furious, she has a highly vocal row and says to the academic that she will sue and destroy her. She sends emails to that effect to the rival.
She has no resources for a lawyer but she prepares her own Claim Form and Particulars of Claim expressed in strong terms and issues and serves these. The defendant does have resources for lawyers and the first step is for her to apply for the case to be designated as a SLAPP due to the academic’s outburst at the conference, emails and aggressive statements of case. Faced with a potentially expensive hearing, the academic is forced to accept the designation of the case as a SLAPP. However, the defendant still seeks and is awarded the costs of the application.
In these circumstances, the academic cannot continue. The rival is able to continue to send her communications to publishers and to prevent the academic from publishing.
Scenario 4
There is a heated dispute among the board of a public company between the Managing Director and another director. Highly aggressive correspondence has passed between them for some time and passions are running high. The director then emails all the other directors and senior employees of the company and maliciously and falsely accuses the MD of lying to them all in relation to the company’s accounts. When he hears this, the MD immediately telephones the director in an agitated and aggressive manner which is intended to distress and inconvenience the director, (which is consistent with much of the other correspondence which has passed between them recently).
The director refuses to back down so the MD decides that, in order to vindicate his position, he has to sue. When the claim is issued the director’s lawyers immediately apply for the case to be designated as a SLAPP. Given the interpretation of “freedom of speech” conferred by clause 2(2) even maliciously false libels count and the public interest test is plainly met since the words complained of (falsely) accused the claimant of lying about the company’s account. And despite this being a private defamation, there is no reason under the provisions why it cannot be designated as a SLAPP. The judge has no choice but so to designate it.
The proponents of the Bill
It is unclear whether any practitioner with any real experience of defamation or related proceedings has either contributed to the wording – or is a supporter – of the Bill. Most practitioners with experience are horrified by the uncertainty and unintended consequences that the Bill is bound to bring about.
This includes defendant lawyers. Gill Phillips, the veteran and highly experienced in-house lawyer at the Guardian recent wrote lamenting the Bill, both because of its uncertainty and also because it was actually a missed opportunity to address the real problems.
Those in favour appear to be principally activist SLAPP groups (whose actual experience of litigation in this area is unclear), defendant journalists such as Ms Cadwalladr and Ms Belton who are understandably frustrated to have suffered the very real distress and inconvenience of media litigation – albeit that there appears to have been nothing improper about that litigation (it is unclear whether these journalists are alive to the fact that actually the ECCTA and the Bill will do little or nothing to assist them in such litigation) and the Government which was behind the ECCTA and is supporting the Bill for political reasons as it “Anti-SLAPP” legislation is popular with the press and the Government likes to be seen to be “doing something” regardless of whether that something is useful or not.
Conclusion
In summary, if the Bill becomes law, a claimant who has been falsely accused of wrongdoing must now tread on eggshells in proceeding with their claim: if they or (or their solicitor) do anything which a judge regards as “beyond that which is ordinarily expected” they risk having their claim classified as a SLAPP. A solicitor who writes an overly aggressive letter or who (through lack of experience or inadvertence), serves what is seen as an overzealous Request for Further Information or fails to comply with a protocol or rule of court puts their client’s claim at serious risk.
Take as an example, the recent case of Packham v Wightman ([2023] EWHC 1256 (KB)) in which the prominent naturalist recovered £90,000 libel damages in respect of publications which accused him, inter alia, of fraud and dishonesty. The action which took over two years to come to court and was resolved only after a seven-day trial. The defendants advanced (unsuccessful) public interest defences. The defendants were individuals who doubtless experienced serious harassment, distress, expense and inconvenience as a result. Under the rules provided for by the Bill the defendants may well have applied to have the claim classified as a SLAPP. This application would have depended not on the (undoubted) legal merits of the claim – which are not relevant to such an application – but on questions concerning matters such as the nature of the pre-action correspondence, the breadth of the disclosure requests and whether or not the claimant could have sued someone with more money.
If the SLAPP application had been successful then there would have been a risk that the claim would have been struck out. This is because the “public interest” defences on which the defendants were relying depend on a factual examination of the steps taken by the defendants to investigate prior to publication. This is not something that will, usually, be within the claimant’s knowledge so that the claimant may have very considerable difficulties in proving to the court – as he would be required to do – that he is “likely” to succeed a trial. But more importantly, the claimant (although he won) would not have recovered his costs unless he could demonstrate “relevant misconduct” by the defendants.
It is important to bear this kind of example in mind as much of the discussion of SLAPPs assumes that all legal actions against journalists are oppressive claims designed to shut down public debate, without serious legal merit. Some claims doubtless fall into this category. But many do not. This Bill will, inevitably, catch both types of claim. It will increase the cost of libel actions because (as has occurred under similar provisions in Canada), “SLAPP applications” will be brought in a substantial proportion of cases and they will work serious injustice some good claims, where claimants will be deprived of their costs or struck out despite having meritorious legal cases.
It is noteworthy that there are no equivalent sanctions for defendants in defamation cases who are guilty of misconduct in the proceedings. A defendant can incur disproportionate costs, breach rules and protocols, make excessive disclosure applications and so on without facing new procedural hurdles. It is true that sometimes in defamation actions there can be a disparity in resources favouring the claimant. But sometimes the reverse can be true with for example an impecunious claimant suing a well-resourced media organisation. The amendment does not cater for any improper behaviour on the part of the better resourced party in that situation. The Article 10 rights of publishers are preferred to the Article 8 rights of those they write about.
The chief problem in media claims at present is not misconduct on the part of any party but the enormous complexity and cost. This has grown and grown, with intermittent statutory accretions to the law which invariably make matters worse. These provisions are likely more than anything to add simply a further tier of complexity and cost.
It is difficult to see how these amendments strike a proper balance between the Article 10 right to freedom of expression and the Article 8 right to reputation. This is a Dangerous Dogs Act of media law: hasty legislation where the consequences have not been thought through.
Gideon Benaim is Partner in Simkins LLP and the Chair of The Society of Media Lawyers.
Leave a Reply