Last week the New Statesman carried an article entitled ‘The Slapp trap: As media lawyers battle to keep Britain’s libel industry lucrative, hopes for reform are fading.’ It claims that Britain needs tougher anti-SLAPP laws. The article contains numerous errors and omissions, some more serious than others.

In this blogpost, I will focus only on the overarching claim that the UK is ‘substantially out of step with other countries on this issue.’ This strikes me as seriously misleading given the rationale for introducing anti-SLAPP laws in these other countries and in terms of the impact they have had upon social justice norms. Neither of these points are tackled in the article.

For those that don’t know, SLAPP is an acronym invented by two US scholars in the 1980s. It stands for Strategic Lawsuits Against Public Participation. As an acronym, it is so open-textured as to be essentially meaningless on its own. Its meaning needs to be fleshed out. The question is how this is to be done in a manner that sufficiently distinguishes it from all other forms of litigation that can be said to be abusive. The most problematic aspect of this definitional exercise relates to the term ‘Public Participation’ which is, ostensibly, a rights-claim entirely unknown to domestic law.

Anti-SLAPP laws can be found in most of the US states, some Canadian provinces, one Australian territory, Europe, and parts of Southeast Asia. What is not clear from the New Statesman article is that these anti-SLAPP laws are not homogeneous in terms of nature, rationale, or operation. Given this, the New Statesman’s position is at once misleading and oversimplistic, for it fails to recognise that the introduction of anti-SLAPP laws, in these countries, has not only failed to solve the social justice problem it purports to solve but also created whole new, unanticipated social justice problems.

If we are to take SLAPPs seriously, we have to be clear about what SLAPPs means. Why? The whole anti-SLAPP movement is predicated on the basis that the underlying legal action (or threat of action) in a SLAPPs context marks it out as something different from every other sort of legal action (or threat of action), such that special rules should apply when SLAPPs occur.

This is a fundamental point – and one, I think, we ignore at our peril – but, when pushed, anti-SLAPP campaigners resist it by retreating to the apparent position that no such authoritative definition can be given. We see this in the New Stateman’s article in two places: first, when Susan Coughtrie (co-founder and co-chair of the UK anti-SLAPP Coalition) refuses to do so and, then, when Gavin Millar KC says that defining SLAPP in the abstract ‘is impossible to do satisfactorily.’ This strikes me as a highly damaging position for anti-SLAPP campaigners to take: it undermines, entirely, their own case that SLAPPs are deserving of special treatment. If what we are saying is that SLAPPs are, essentially, abusive claims affecting the press then law reform is unnecessary. UK law already contains considerable safeguards by which unmeritorious claims (and defences) can be struck out. Moreover, abusive claims can be dealt with through indemnity costs (which these ‘rich and powerful’ claimants can be made to pay).

To be fair, what Coughtrie says is: ‘searching for “the perfect example of a SLAPP completely misses the point.’ She goes on to suggest that SLAPPs are definable by the consequences – which includes the high cost of defending abusive actions (many of which, she says, do not result in a trial); that people are forced to make retractions or settlements simply because they can’t afford those costs, which is ‘then spun to imply they did something wrong.’ This may be so, but it does not distinguish claimant from defendant in media actions (journalists often say: if we are wrong, sue us – knowing full well that not all claimants can afford the costs of doing so); and, more importantly, does not distinguish media lawsuits from any other legal action. For this inequality of arms is apparent everywhere: workers and employees in employment law disputes; tenants in landlord disputes; small companies exploited by larger companies; consumers swindled by corporations. To be sure, litigation – in any form and in any context – is highly stressful and causes untold angst.

If we want tougher anti-SLAPP law, especially by means of legislation, we must be able to define it. In this search, there are only two places to look: the academic literature or overseas legislation. The former is the natural starting point. In fact, given that the term SLAPP is pure invention, the only place for a definitive answer is in the work of those that invented it: Penelope Canan and George Pring. Here, we see the rationale for inventing the term set out in clear terms: they were concerned that the right to petition government (found in the First Amendment of the US Constitution) was imperilled because those whose rights were being denied were those who could least afford to enforce it.

The petition clause protects the right of citizens to ask government to address grievances, change policies, or right wrongs. The archetypal litigation they uncovered was of politically-active citizens or citizen groups being targeted by property developers for opposing proposed land developments. The spurious lawsuits that such developers threatened were not only bogus – claims in conspiracy, for example – but also demanded damages in mind-boggling amounts – tens of millions, for example. Whereas such claims could be said, rightly, to involve free speech (eg, in collecting signatures for a petition), Canan and Pring resisted the idea that these disputes were properly characterised as press freedom matters. First, as is obvious, not all matters of press freedom could be properly categorised as petition-type matters, but secondly, they concluded that the US’s generous protections for the press under the rule in New York Times v Sullivan did not warrant additional protections for them.

So, if we’re looking to the commentary for our definition of a SLAPP, we will see it is about civic society (ie, citizens individually or collectively) exercising their rights to petition the state, by reason of, say, writing to their elected official, signing petitions, or using other state-based mechanisms, such as objecting to planning applications. This would capture civic actors like, say, environmental groups but not the press.

Alternatively, we look to overseas legislation. But which? I notice that no one in the anti-SLAPP movement seems to champion the Australian SLAPPs legislation. Presumably, that’s because defamation claims are explicitly excluded from its ambit. The legislative provisions we find at state-level in America (there is no federal anti-SLAPP law), some Canadian provinces, and in Europe do extend to the press. Yet, the rationale for introducing these laws is significant because in each instance the law has been introduced to deal with some specific aspect of the legal system. These features, it will be found, do not apply to the UK.

Take America, for example. Two features are important. First, as we know, civil trials over there are jury-led, typically. Secondly, there is no limit to the amount that can be claimed (or awarded) by way of damages. This explains why Trump is suing the BBC in the US and not in the UK. His claim, which was in the billions last I heard, is being brought in Florida, where he hopes (presumably) the jury will be favourable to him. In the UK, I don’t need remind you, damages in defamation are capped whilst damages in privacy, which are not, have, generally, not exceeded the amount in defamation. Moreover, jury trials in defamation are a thing of the past. In other words, the problem of exorbitant damages and jury-led decisions are not something we need to correct.

Alternatively, we can look to Canada. Since there is no equivalent to s 1, Defamation Act 2013, claimants need only show that the words used are defamatory. There is no need to demonstrate that they are seriously harmful, nor is there any higher threshold for corporations to satisfy. Here, we see the obvious error in the New Stateman’s report that ‘an oddity of libel law in the UK’ is that the defendant must prove it is (substantially) true. Actually, this is a tradition of the common law, that we find in all commonwealth countries. In this respect, Britain is not, as the New Statesman would have us believe, ‘a particularly attractive option for the rich and powerful around the world.’ Canada’s and Australia’s legal system is far more generous toward claimants. The powerful corrective to this position that Ontario’s anti-SLAPP law represents is unnecessary; we cured it when we introduced the serious harm test in 2013 (which renders all the colourful examples that the New Statesman gives us, drawn from the 1940s to the early 2000s, interesting but pointless).

Likewise, remember that the European campaign for anti-SLAPP laws was premised on a number of issues, chief amongst which was the continued existence, across much of continental Europe, of criminal sanctions, including jail time, for libel. Again, this is not a problem that confronts the UK. We abandoned criminal libel a number of years ago.

Finally, we might recognise the tremendous procedural and substantive problems that the law in Ontario (which the New Statesman champions) and the US anti-SLAPP laws have created. Firstly, it is simply wrong to suggest that this means SLAPPs cases can be struck out quickly without cost – financial or otherwise – to innocent defendants. In the US, anti-SLAPP motions can extend the conclusion of even worthy cases by years. Consider, for example, DC v RR, a case concerning cyberbullying. Proceedings for the harassment and intention infliction of emotional distress (ultimately successful) were delayed considerably whilst the courts dealt with (and, ultimately, rejected) the counterclaim, in the anti-SLAPP motion, that the bullying was a form of protected speech. Imagine being the claimant and his family whose battle for redress was hopelessly delayed in these circumstances.

Alternatively, read the research conducted by Professor Hilary Young, whose work on the Ontario legislation found that ‘… there is reason for concern, especially in terms of the time and expense of [anti-SLAPP] motions. Not only is the 60-day limit not being met, but it is often not even close to being met.’ This is because, as is obvious, the juridical task to determine these motions based upon the public interest is not straight-forward. In the New Statesman article, Gavin Millar KC is quoted as saying that there is a simple solution to the problem of SLAPPs: “If the judge decides there is a valid defence, the case gets struck out simply because it concerns public-interest speech.” The Ontario experience, though, casts considerable doubt upon the viability of this solution, certainly in terms of what anti-SLAPP campaigners want, because, there, the delay in resolving SLAPP disputes on public interest grounds is double-edged: for whilst there is a public interest in freedom of speech there is an equal and countervailing public interest in ensuring that genuine grievances are heard (and resolved) by the courts. This is a complex matter of fact and of law that takes time to resolve if justice is to be achieved. Certainly, it is not something judges can do quickly without hearing evidence, which, of course, takes time.

This is just a small sample of the considerable problems that would need to be overcome if we are to have tougher anti-SLAPP laws. This is not a problem that has an easy solution nor is it one that Parliament can legislate for without the very real risk of introducing unintended consequences into our legal system. I understand the reason why campaigners feel stronger about the issue, but we must tread carefully and, above all, be careful what we wish for.

Paul Wragg,, Professor of Media Law,, University of Leeds