The articles follow correspondence between the journalists and the SML which the SML has published here. The Press Gazette has followed up in similar style noting the two pieces. There was a similar article by Juliette Garside in the Guardian earlier this month.
The picture painted by these articles is absurd. The SML has no staff, no budget and – unlike the media and SLAPP campaigners – no media platform or political influence. Contrary to the impression given by the articles, its membership does not consist purely of claimant lawyers, nor does it seek specifically to champion the position of claimants in media disputes. It comprises experienced media lawyers, most of whom act for defendants as well as claimants in media matters, who seek to bring their experience and expertise to the formulation of policy and legislation in this specialist area of law.
And the SML has not embarked upon any kind of “lobbying” campaign, far less an aggressive one as suggested. It has written a handful of letters over more than three years to the Ministry of Justice (the “MoJ”) and Parliamentarians and had two online meetings with officials from the MoJ. It has had no meetings with Ministers. The suggestion that civil servants feared a “backlash” from lawyers is just plain silly.
Public discourse on the SLAPPs issue has been heavily dominated by the media and their vocal supporters in Parliament. In January this year, 166 editors, lawyers, academics. journalists and “civil society representatives” signed a letter to the Prime Minister demanding Anti-SLAPP legislation in the King’s Speech. The signatories included representatives of almost every major UK publisher and an array of journalists (including the authors of all three articles in question). The SML is a rare exception to the media “group think” on this issue. It lacks a media outlet or high profile spokespeople.
When considering the SLAPP issue, three matters in particular are worth bearing in mind.
- The evidential basis for the assertion that there is a widespread problem of unmeritorious media claims and wholly unacceptable tactics to intimidate defendants in such claims is threadbare. The SML has asked the MoJ to identify the cases they had in mind, but they declined to identify a single one. The various cases cited by campaigners seem – to say the least – questionable. For this reason, the SML commissioned some academic research from Paul Wragg, Professor of Media Law at the School of Law at the University of Leeds, a copy of which is here, which undermines those assertions. We now understand that campaigners say that it is not so much these cases which are the problem, but other cases where defendants were coerced into withdrawing public interest stories at an early stage. No examples are given.
- There are enormous technical problems with the SLAPP provisions already enacted and proposed to be extended to all types of media claims. We set these out in INFORRM here two years ago. We have had no meaningful response to these concerns.
- The SML has not denied that there are some problem claims, nor is it opposed to properly thought through and targeted reform. What it has said is that the matter should be referred, as the Lord Chancellor, David Lammy, has previously suggested, to the Law Commission so that the evidence can be properly assessed and the potential effect of reform properly analysed. We have sought to clarify in subsequent correspondence with Mr Geoghegan his position on referring the matter to the Law Commission but he declined to inform us. We understand that the position of Mr Lock is that of the UK Anti-SLAPP Coalition which is that they are not against the involvement of the Law Commission but are concerned about delay. Delay can of course always be cited as a concern, but pressing potential legal issues are often considered by the Law Commission, they are for example currently considering issues such as criminal appeals and product liability. These too could be considered to be urgent issues but the view is taken that it is more important to get the law right. The same is true here. Otherwise, it is not clear why this modest proposal would be opposed by anyone.
The exchanges of correspondence and the articles from the journalists are worth reading since they illustrate the problem of journalism with a pre-determined agenda. No impartial observer could view this as a fair-minded truth-seeking journalism, attempting to assess the genuine extent of the influence or the role of the SML. Comments from a variety of prominent Anti-SLAPP campaigner were included. Their claims remained unscrutinised.
Mr Lock ends with an unchallenged assertion by MP David Davis (surprisingly transferred from the Conservatives to Labour for the day) describing London as turning into the “SLAPPs capital of the world”. This is despite the fact that the latest figures from “Coalition against SLAPPs [pdf]” has the UK well down the European league table. Mr Geoghegan and Ms Corderoy end with an (unnamed) former newsroom editor suggesting that if Jeffrey Epstein had been English he might have got away with it. This is not serious journalism but one-sided advocacy to a pre-determined agenda.
It has also been reported that Baroness Stowell is planning to introduce a Private Members Bill in the Lords providing for further SLAPP reform. She identifies her priorities as (a) an “early dismissal mechanism that allows judges to balance freedom of expression vs the claimant’s rights” (b) “express case management powers allowing for a determination to be made on the papers”; and (c) “a mechanism to protect defendants from adverse costs if the case is found to be a SLAPP”. These appear to overlap but not to be identical to the provisions in the Private Members Bill introduced by Labour MP, Wayne David, in the last Parliament, which did not become law.
We await to see the form of the proposed Bill. There are of course already early dismissal mechanism which allow judges to dismiss bad cases (and in doing do they invariably balance freedom of expression with claimants’ rights) and so we would have to see how it is proposed that these existing measures are added to. Striking out a case, thus foreclosing on a claimant’s essential rights, without a hearing would be controversial. It will be interesting to see how it is proposed that the position of claimants is protected. And costs protection for when a case is held to be a SLAPP rather depends on the definition of a SLAPP in this situation.
And in respect of each of these measures, it would be useful to know the precise past cases where it is said they would make a useful difference, so that they can be properly assessed. That is why the SML presses so hard for the cases which are said to be SLAPPs to be identified. (If the real problem is cases which are settled early due to pressure from aggressive claimants, it would seem that these measures would be of little assistance.)
Baroness Stowell is in fact somewhat low down in the Private Members Bills ballot so she may find it difficult to make progress with her Bill. There may be merit in her proposals, but it is difficult to see why the matter would not benefit from consideration by the Law Commission.
The SML will continue to engage with interested parties including the MoJ and Parliament to provide the benefit of its collective experience and expertise. In that way, it is hoped that it can help this debate proceed in an informed and constructive manner.
The Society of Media Lawyers was established in 2023. It comprises solicitors and barristers who have experience in media law matters. Its members act for both claimants and defendants in media law matters.