It took just two years for the idea of an anti-SLAPP statute to go from a grassroots movement in the UK to its realisation in legislation. There are obvious problems with the resulting anti-SLAPP provisions in the Economic Crime and Corporate Transparency Act 2023 (“ECCTA”), and the more general “SLAPPs Bill”, currently at the Committee Stage. Both are overinclusive in their definition of “SLAPPs”, and the burden they place on claimants is likely to lead to problems with access to justice. But what should be done about SLAPPs?

 SLAPPs under the existing law

It may be thought that recent reforms in defamation law—a favourite action for SLAPP claimants as it immediately puts the defendant on the back foot of having to prove complex factual matters—have effectively addressed the problem of SLAPPs. But SLAPPs need to be addressed early in proceedings before the threat of a costly and protracted trial can have a chilling effect on expression. There are still loopholes that can be exploited by claimants to draw out proceedings and force defendants into settling in silence.

Although the serious harm test under section 1 of the Defamation Act 2013 placed a burden on claimants to prove that the statement complained of had caused, or was likely to cause, serious harm to their reputation, the test does not work quite that way at the pre-trial stage. As a factual matter involving a potential contest of evidence, the early dismissal of claims on the serious harm issue is still generally viewed by the courts as a drastic measure. Many claimants may pass on an inference of harm, but even if they cannot, they will often be given the benefit of the doubt to allow the issue to go to full trial. Similar limitations apply to strikeouts for abuse of process. Even if a claim reflects some improper purpose, it may be allowed to proceed to trial if it nonetheless can be said that a reasonable person in the claimant’s position may be motivated to seek vindication.

It has furthermore been argued that section 4 of the Defamation Act 2013 already “provides considerable protection for journalists who report a prima facie defamatory allegation in a responsible way”. But “responsible journalism” or not, the defence can only provide a solution to the problem of SLAPPs if it can be determined early in proceedings. In practice, the defence is notoriously complex and is generally seen as requiring extensive trial. The third limb of the defence in particular—the requirement that the defendant’s belief is reasonable—is known to be a major point of contention, as it often involves an intense factual enquiry into what exactly the defendant “said or knew or did, or failed to do, up to the time of publication”.

Therefore, it is not clear that defamation law in its existing form can adequately address the problem of SLAPPs. However, one can at least see the creeping development of a more flexible approach in the above-mentioned areas in the last few years. There have been a few instances now, for example, where claims have been dismissed early on the issue of serious harm. This includes not only strikeouts on failure to plead serious harm but also summary judgments on the basis that the claimant has not adduced sufficient evidence of such harm. Moreover, even if section 1 of the 2013 Act has taken the wind out of the sails of the Jameel “real and substantial tort” test, one can see glimpses of a proportionate approach to the issue of serious harm, where the court will recognise some evidence of harm to reputation but will nonetheless dismiss the claim on the basis that the harm does not outweigh the interest in the defendant’s freedom of expression. There also appears to be some increased vigilance for abuse of process and increased willingness to strike out claims for improper collateral purpose. Moreover, while the early trial of defences in defamation claims remains problematic, there has at least been some acknowledgement that the section 4 public interest defence can usually be “tried in a couple of days”, and some willingness, albeit under bespoke circumstances, to order a preliminary trial of the public interest defence.

An alternative solution?

These developments have not crystallised as established principles, and the courts may be uneasy about adopting such developments on a more principled basis, considering that that would involve some recalibration of the rights involved. However, they could be drawn together and combined as the basis of an anti-SLAPP statute. Doing so would lead to something different from the ECCTA and the SLAPPs Bill. It would suggest instead an anti-SLAPP statute along the following lines:

A court may strike out a claim before trial if:

(1)  it arises from an expression on a matter of public interest, and

(2)  the claim either (a) is lacking in substantial merit, or (b) there is some evidence of improper collateral purpose, and

(3)  it is reasonably clear that there is a valid defence.

Too much can be made of the burden of proof in the search for a solution to the problem of SLAPPs, but the burden should reflect, as closely as possible, how it operates in the existing law. What counts as a “matter of public interest” is broadly interpreted under the law. It is an objective question for the court—even when jury trials were the norm. It is not an onerous burden for a defendant. The serious harm test under section 1 is the key test now for whether or not there is substance to a defamation claim, and the courts should insist under the proposed mechanism that claimants adduce sufficient evidence that the statement complained of has caused harm, or is likely to cause harm, for claims to proceed to trial. Moreover, any inference of harm should be closely scrutinised and defeated by contrary evidence. As to the question of improper collateral purpose, the existing provision to strike out claims on that basis is founded on the courts’ inherent power to prevent the administration of justice from being brought into disrepute. Experience shows that this does not require extensive trial, and courts can engage in a factual enquiry on their own initiative to determine whether there is such abuse.

As reflected in the wording, the standards for both “substantial merit” and “improper collateral purpose” should be relaxed slightly compared to the separate provisions for strike out and summary judgment on those bases in existing law and procedure. Thus, rather than insisting on certainty that the claim “discloses no reasonable grounds”, or “has no real prospect of succeeding”, what would be required here is that substantial merit is “lacking”. Rather than insisting that an improper purpose is the predominant purpose, what is required here is that there is “some evidence of improper purpose”. The claimant should not enjoy the same benefit of the doubt concerning disputed facts.

For the question of a valid defence, it is suggested that the burden remains on the defendant. Certainly, for the public interest defence, which is most relevant to SLAPPs, the defendant is best placed to adduce evidence for the defence. But more importantly, whatever defence is pleaded—and it would need to be pleaded early under this mechanism—the burden would be alleviated by the preceding conditions and the provision for early trial of the defence where possible. That is, if a claim has already been determined to arise from an expression on a matter of public interest and has either been found to be lacking in merit or to present some improper purpose, if possible, there should be an early trial of the defence and the standard of proof for that should be reduced to something less than what is expected at full trial. The exact nature of that standard may need to be worked out further, but it should of course be something more than a merely arguable defence. The courts should retain some discretion, moreover, as to whether a defence can be tried at the early stage. However, where the other conditions are met, the courts could be directed to actively look for ways for early trial of any pleaded defence under sections 4, 6 or 7 of the 2013 Act.

A decision on substantial merit or abuse of process could be reserved until there is a preliminary trial of a pleaded defence. If it is reasonably clear after a brief trial that there is a valid defence and the evidence (or lack of it) also points to lack of merit or some element of improper purpose, the court could confidently strike out the claim at the preliminary stage. The early dismissal of such claims should not be considered too drastic as the interlinked conditions would mitigate against the risk of the hasty dismissal of legitimate claims. The suggested provisions would thereby work in unity, combining to relax the more restrictive standards of the siloed mechanisms for early dismissal in the existing law. They may also have some application to other actions that are used for SLAPPs.

Questions about the allocation of costs may remain, and those who support the current reform proposals may argue that the combined conditions would still prove too onerous for defendants. However, a claim cannot be defined as a SLAPP simply because it arises from expression on a matter of public interest and there is a valid defence, or because it is lacking in substantial merit, or because there is some improper collateral purpose. Besides the likely denial of legitimate claims, such an approach would include, for example, claims like Flood, where the claimant was genuinely motivated to seek vindication, but where it was only determined on trial that there was a valid defence. Such an approach would also be more likely to include claims genuinely motivated by vindication but commenced due to ineffective, rather than unethical, legal assistance.

While admittedly more cautious, it is argued that the above suggested provision would find a surer footing in existing law and practice and would effectively address the problem of SLAPPs, without taking on an unnecessary risk of the denial of innocent claims.

Mark Hanna is a Senior Lecturer in Private Law at the University of Canterbury Christchurch, New Zealand. This post is a summary of an article in the forthcoming issue of the Journal of Media Law.