SLAPPs – defamation, privacy, public participation and reform
We set out below how SLAPPS impact freedom of speech and public participation, why there is a current focus at a governmental and regulatory level and what future change might be on the horizon. We signpost the full SRA guidance which is a must read and conclude with the recent high profile Arron Banks libel case.
What are SLAPPs?
Strategic Lawsuits Against Public Participation (SLAPPs) can be excessive or meritless legal claims, typically brought or threatened by the super-rich with the goal of intimidating their critics into silence and avoiding scrutiny. Tactics include sending threatening legal letters to journalists, academics, campaigners and other public voices warning them, without merit, to cease or refrain from making statements and publishing material that is critical in nature or threatening legal claims involving significant costs and damages. Ultimately, they aim to gag individuals and therefore present a real threat to open speech and democracy.
How do SLAPPs impact freedom of speech and public participation?
SLAPPs can take the form of unmeritorious, or overly aggressive defamation claims and target legitimate critique or commentary in a bid to take it out of the public domain. This is achieved either through retraction of publications or intimidating journalists and/or broadcasters into not publishing articles at all, due to fear of reprisal. SLAPPs are sometimes used by the subjects of corruption investigations to remove public reporting on the investigation.
SLAPPs therefore stifle legitimate reporting and debate as parties with financial means can effectively erase negative commentary about themselves and dictate how their image is portrayed. This use of litigation is seen as a growing threat to freedom of speech, and it has been argued that some individuals and organisations have come to be regarded as reporting “no go” zones as a result.
Why the current focus?
The term SLAPPs was coined in the 1980s by Penelope Canan and George Pring, so its use is not new. However, with more instances of SLAPPS being reportedly used in the UK and worldwide, concern about their impact is growing.
On 17 March 2022 the Secretary of State for Justice published a Call for Evidence on reforms to tackle the issue. A variety of stakeholders shared their views on proposed reforms in the area of defamation and privacy litigation as well as providing an insight into the impact of SLAPPs in their industries.
Thematic review by the Solicitors Regulation Authority
The Solicitors Regulation Authority (SRA) recognises that solicitors who facilitate SLAPPs will be failing to meet their obligations to abide by wider public interest principles and in March 2022 they released updated guidance on “Conduct in Disputes” which specifically focused on SLAPPs. The message for solicitors practising in the area of defamation and reputation management was to be vigilant to litigation bearing the hallmarks of SLAPPs and to remember their obligations to report.
Later in 2022 the SRA launched a thematic review into solicitors’ conduct in disputes, which looked at the use of SLAPPs by legal professionals. The SRA visited 25 law firms who engage in defamation and reputation management work, speaking to the people responsible for reputation management matters and reviewing files.
The key findings from the thematic review, published on 14 February 2023, echo the message in the guidance. The SRA say that there is room for solicitors to improve the way they handle the risk of SLAPPs in disputes, that solicitors should take further steps to make themselves aware of their obligations to report misconduct and that there is room for improvement in training and competence for solicitors around conduct in disputes.
It may be worth noting that the SRA did not find any examples of SLAPPS in their file review.
SRA Warning Notice on SLAPPS
On 28 November 2022 the SRA issued a Warning Notice on SLAPPS. In it, the SRA explain their expectations of lawyers and law firms which include the following:
- that lawyers and firms are able to identify SLAPPs and decline to act / advise against pursing such courses of action (including pre-action)
- that solicitors act properly in their conduct of the case as there are certain behaviours commonly associated with SLAPPs eg, making unduly aggressive or intimidating threats or claiming remedies which the client would not be entitled to on the facts and
- that lawyers will correctly label correspondence and not mislead recipients by using the headings “without prejudice”, and/or “strictly private and confidential” when not properly warranted
The SRA will likely pursue disciplinary action against any lawyer or law firm which fails to properly comply with the Warning Notice.
Arron Banks
In June 2022, the High Court heard a libel claim brought by the pro-Brexit campaign donor Arron Banks against journalist Carole Cadwalladr. The claim was in relation to a TED Talk and a tweet by Ms Cadwalladr where Ms Cadwalladr accused Mr Banks of having a secret relationship with the Russian government. She relied on the public interest defence and was successful at the High Court, but on appeal to the Court of Appeal, the court held that Mr Banks should receive libel damages.
It is a matter of public record that some commentators have labelled this litigation as a SLAPP owing to the fact Mr Banks brought the claim against Ms Cadwalladr in her personal capacity, rather than against Ted Talk or the Observer who first published her words. However, the High Court judge held that the claim was not a SLAPP. The key element of a SLAPP was considered to be a baseless legal claim, but Ms Cadwalladr’s defence of truth failed, and her defence of public interest only succeeded in part at the High Court. And now the Court of Appeal has ordered her to pay damages to Mr Banks.
This case and the resulting SLAPP discussion demonstrates the potential subjectivity around the classification of litigation as a SLAPP. Practitioners need to be well informed about all SRA guidance and case developments in this area.
What changes are to come?
The SRA are going to undertake a further thematic review to look at compliance with the warning notice, whether firms have provided training on SLAPPs and a number of related matters. Law firms and solicitors should be aware that SLAPPs are an area of concern and that the SRA intend to continue to monitor from a regulatory perspective.
The Government’s Call for Evidence and has stimulated discussion around procedural and legislative reforms. Suggestions to come out of the Call for Evidence included requiring claimants and defendants to append a Statement of Truth to their Letters of Claim and Response – such a requirement could discourage assertions which are not corroborated by evidence, or assertions which are known to be false. A variety of other reforms are being discussed, and the Government is consulting further with relevant bodies. It is working with the Civil Procedure Rule Committee to introduce a formal costs protection scheme since the Call for Evidence showed that for opponents in SLAPP cases, huge costs are the “single greatest factor” in silencing them. The costs protection scheme aims to address the inequality of arms of claimants and defendants in SLAPPs cases and will stop costs from becoming excessive.
Whilst SLAPPs do pose a threat to freedom of speech in the UK, changes to defamation legislation have to be approached cautiously. Any modification to legislation to deal with a small number of abusive cases has to be weighed against the risk that it fails to actually address the problem and disrupts the fine balancing of interests which the legislation seeks to achieve, such as access to justice. We will wait to see what reforms, if any, follow.
Conclusion
Reputation management professionals should be alert to the hallmarks and dangers of SLAPPs. A good understanding of SLAPPs will help professionals to ensure they operate in line with the SRA Code of Conduct themselves and enable them to identify when others might be using them.
It will also be important for all legal professionals to be on the lookout for future changes to the legal and regulatory sphere in relation to SLAPPs. It is possible that reforms of some kind will follow on the back of the Call for Evidence, and any changes would impact on how legal professionals conduct litigation.
If you have any queries, please do get in touch with a member of the team.