On Friday 3 May 2024, amendments [pdf] to the Strategic Litigation Against Public Participation Bill [pdf] were tabled by MPs Wayne David and Sir David Davis. The Bill is due for its Committee Stage in the House of Commons this week.

The serious problems with the existing draft of the Bill have been commented on before on Inforrm (here and here). These amendments do not materially address these problems. Instead Sir David is proposing a wholesale revamping of the Bill – removing all its operative provisions and replaced them with the  “UK Anti-SLAPP Coalition Model Anti-SLAPP law” [pdf] (“the Model Law”) This would have extreme and uncertain consequences – causing serious damage to access to justice while doing little to address the perceived “SLAPP problem”.

The proposed amendments fall into two categories. There are amendments tabled by both MPs to tweak the existing draft. In particular, these involve expanding the test for public interest and the reformulating the “intention requirement” into one where, the Court merely needs decide that it is “reasonable to conclude” that intention exist.

However, Sir David also proposes much more radical amendments. These involve the deletion of the substance of the current draft Bill – clauses 1, 2 and 3 – and their replacement  with the Model Law (with one small and ill thought out change discussed below).  But the Model Law is not suitable for wholesale incorporation into a statute.

It is not clearly drafted as an English statute.  It appears to be based on US precedents (referring, intermittently to “motions” by the defendant – what in English law are called “applications”) and to “lawsuits”.  More importantly, the Model Law (and hence the Davis amendments) involves wide-ranging and unprincipled changes to English law with unpredictable and damaging consequences.

“Acts of Public Participation”

The first point to note is that it goes well beyond the ambit of civil litigation against journalists or the media.  An “act of public participation” includes, “whistleblowing activities concerned with matters of societal importance, administrative or judicial claims, protests, and demonstrations” (clause 1(1)) and an “abusive lawsuit” appears to include any court proceedings brought in relation to an act of public participation.

This provision would, for example, cover injunctions sought by businesses to prevent disruptive protests. This seems to fly in the face of Government policy which has been to deter protests which cause disruption – even though they are plainly acts of “public participation”. It would also appear to cover some kinds of judicial review claims. There is an exemption for actions against a “government unit” – but this a term with no clear meaning in English law.  Does it, for example, cover a local authority?  It is noteworthy that, in its 2022 response to its Call for Evidence on SLAPPs the Government expressed the view that

“establishing a new right to public participation may create too broad a statutory provision, whilst not necessarily significantly advancing protections for Defendants – and could, therefore, lead to unnecessary complications and satellite litigation around whether a case constituted public participation or not”.

“Abusive Lawsuits against Public Participation”

An “abusive lawsuit against public participation” is defined in clause 1(2)(b). It does not, actually, have to be abusive as long as it has what are described as “some features of an abuse of process” (emphasis added). These “features” are deemed to include (but are not limited to) matters such as.

  • “the scope of the claim, including whether there is a real risk it will deter acts of public participation beyond the issues in dispute” – It is difficult to think of any defamation claim that will not have this risk but any meritorious and successful defamation claim may risk deterring “public participation” by the defendant.
  • “any failure to provide answers to good faith requests for pre-publication comment or clarification” – It is difficult to see how failing to respond to requests for comment or clarification can sensibly be described as a “feature of abuse of the process” at all. There is no obligation in law to respond to such requests – which assuming they are made in good faith may, nevertheless, be unclear, oppressive, badly formulated and so on.
  • “the history of litigation between the parties and previous actions filed by the claimant against this party or others against acts of public participation” – It is very hard to see what relevance the history of litigation is to the merits of a current claim. Does that mean that a person who has brought a media claim in the past is simply restricted in perpetuity from bringing any such claim in the future – lest it be characterised as abusive under these provisions, regardless of how badly he has been wronged?
  • “any feature that suggests the lawsuit has been brought with the purpose of intimidating, harassing, or otherwise forcing the defendant into silence” –But seeking to silence someone who has published false and defamatory allegations is not abusive – it is the whole point. The claimant contends that the defendant is publishing serious false allegations about them which should not be published. The same is true for any privacy claim (to which these provisions would apply as well). If a journalist obtains highly private information about someone, say medical information, that person may well wish to prevent the journalist from publishing it, or to “silence” the journalist if you will. That is not abusive, that is the application of the law.

Overall there are ten “features of abuse” listed, four of which have nothing to do with the actual conduct of the proceedings but with entirely collateral matters.

Dismissal

The provisions in relation to dismissal are unclear:

  • The judge must dismiss a claim found to constitute an abusive lawsuit against public participation, (clause 2(1)) unless
  • The claimant satisfies the judge that the claim is like to “prevail at trial” and that the harm suffered means that the public interest in proceeding to trial outweighs the public interest in dismissing it (clause 2(2)); but
  • The judge may dismiss the proceedings if the claim “shows serious signs of abuse” in terms of the list at clause 1(2)(b).

As regards the second limb, it is difficult to understand what “public interest” there would be in dismissing a meritorious claim.

As regards the third limb, this is particularly difficult: it is, presumably, intended to mean that even if a claimant is likely to prevail and continuing the claim is in the public interest, the proceedings can be struck out where “signs of abuse” are serious. Given that several of those “signs” have nothing to do with the conduct of proceedings a meritorious properly conducted claim could be struck out for entirely collateral reasons (which would not be treated as instances of “abuse” under the current law).

Other Problems

The Model Law and thus the proposed amendments contains a number of other provisions which have not been thought through.  These  include:

  • There is a provision for a mandatory stay if an application is made by a defendant to dismiss proceedings as a SLAPP until the application (and any appeal is determined)(clause 3(1)). This deprives the Court of the power to advance a claim even if a weak “Anti-SLAPP” application is made. Delay in media proceedings is particularly undesirable since it postpones the opportunity for the claimant to vindicate their reputation (and so exacerbates the harm caused) and also delay invariably increases cost.
  • But there is a strong protection for defendants who bring unmeritorious Anti-SLAPP “motions” [sic] – if the defendant is unsuccessful then the claimant is not entitled to costs unless the application is brought in bad faith (clause 4(2)). This means that a defendant can bring an application essentially with no costs risk – and, as already mentioned, the action will be delayed until the application is determined.
  • If a claimant loses and the claim is dismissed as a SLAPP then they must pay costs on a “full indemnity basis” (clause 4(1)).
  • The Model Law introduces what is, in substance, a new cause of action for “litigation conduct with some feature of abuse of process”.  it provides that, if a claim is found to be a SLAPP a judge may award the defendant damages to “sanction and deter the claimant’s conduct” (clause 4(3)). These are, in substance, exemplary damages – the defendant does not have to demonstrate any loss or damage or even actual abusive conduct. This is extraordinary, unprecedented and unprincipled.
  • A “strong presumption” is introduced that a defendant in any proceedings brought in relation an “act of public participation” (not just one which is “abusive”) has to give disclosure of only “key adverse documents”, “key documents on which they rely” and “key documents necessary to enable other parties to understand “the claim or defence which they have to meet” (clause 5(2)). It is difficult to see why a defendant to a meritorious claim is given this advantage – which is likely to cause serious difficulties for claimants who still have to give proper disclosure under the rules.

Rule Changes

As already mentioned, Sir David‘s amendments deviate from the Model Law in one respect. His clause 7 replaces an incomplete provision for amendment of the Civil Procedure Rules with this remarkable draft:

“Within three months of the passing of this Act, the Civil Procedure Rules must be amended to introduce protocols to cover provisions set out in [clauses 2 to 5]”

The present version of the Bill contains a clause which provides that it comes into force two months after it has been passed (clause 4(2)). The requirement that the rules must be amended can take effect only once the Act is in force. Thus, although it gives the Rules Committee the extraordinarily short period of three months to do their work, the combined effect of these provisions is that they will only have one month.  Sir David doubtless wants the Rules Committee to get on with it but this is a recipe for hastily and badly drafted rules.

And the requirement is not to introduce new rules of court at all – only to introduce “protocols”. These are statements about pre-action conduct which have nothing to do with the substantive provisions proposed in the Bill.

The Amendments and the Rights of Others

The Model Law has the admirable aim of protecting and promoting participation in public debate. Unfortunately its drafters have approached the issues in a blinkered and one-sided way. The law should certainly prevent and deter abusive conduct by those wrongly seeking to shut down public interest debate but public interest has another side. The public must also be protected against those who use their platforms to spread misinformation, make false allegations or disclose other people’s secrets for gain.  The law requires the Courts to protect not just the Article 10 rights of journalists or bloggers but also the Article 8 rights of those who are unjustifiably maligned.

Let’s take one potential scenario, an MP is accused of sexual misconduct by a malicious blogger, a person with whom they have had a series of legal disputes over a number of years. Before publication the blogger asks the MP for comment but, in the light of their previous history (and the outrageous nature of the claim) he refuses to do so. The blog is widely read in the locality and is regularly mentioned by constituents. The MP is incensed and writes aggressive letters of complaint which receive no response. He instructs solicitors who write forceful pre-publication letters and, in the absence of response, issue High Court proceedings seeking a full range of remedies. The solicitors advise the MP to make a complaint to the police and to the blogger’s employer. The MP says publicly that he has had enough and wants to “silence” the blogger. The blogger makes an Anti-SLAPP application. He says that this is clear public interest case because the claimant is an MP. There are clear “features of abuse” under clause 1(2)(b) including, a failure to respond to request for pre-publication comment, a history of litigation between the parties, simultaneous acts in other forums and an intention to silence the blogger. On these facts, the MP would face a serious risk that the claim will be declared be an “abusive lawsuit against public participation”. If there are evidential disputes where the outcome is uncertain (did the MP in fact abuse the person in question?) then the Court may have no choice but to strike out the claim. Contrary to the public interest a false and malicious allegation will go unpunished.  The MP may even be ordered to pay damages to the defendant, despite his claim in fact being well founded.

Conclusion

If Sir David‘s amendments were to be allowed then the practical consequences are wide-ranging and unpredictable. The Bill is moving from muddle to maelstrom, being driven by activists with no experience of media actions and well-resourced media organisations delighted that there is apparent political appetite to restrain proper accountability in law for their journalistic misdeeds.

But all these proposals lack technical input from those who have experience in and understand this form of litigation and the likely highly adverse effects which will arise from such provisions. There has been no consultation or White Paper dealing with these provisions and no proper engagement with either the public or specialist practitioners in relation to their merits and the efficacy.

These amendments do at least show that there is acceptance by MPs that the original draft of the Bill left something to be desired. However, they do not allay the concerns with the fundamental problems with these proposals.

Parliament and the Ministry of Justice should take a moment to pause. For Parliament to legislate at pace, in the dog days of a Parliament and in such a state of such confusion would be a great mistake. It is to be noted that the recent “thematic review” under taken by the Solicitors Regulation Authority noted that in 40 cases reviewed in 20 media firms visited, only one such case even had any “indicators of a SLAPP” (it was far from definitive whether even this case could be properly characterised as a SLAPP, it was conduct from the other side not the firm being reviewed which caused concern and the SRA said merely that they were investigating the matter further). A similar review by the SRA last year found no evidence of any SLAPPs whatsoever. This strongly suggests that the problem has been grossly exaggerated.

The law of defamation and privacy safeguards important rights for individuals against the excesses of the media and others. Parliament should legislate for the curtailment of the enforcement of those rights only extremely carefully. The current passage of the Bill suggests that Parliament is willing to throw off any such care and restraint.  Sadly, it seems likely that MPs will live to regret it.