Government finally unveils laws to clamp down on SLAPPs

Chalk: Stamping out brazen abuse of justice system

The government is to define in law what a SLAPP is in relation to economic crime and require claimants to prove it has a reasonable chance of success to advance it in court.

As well as this early dismissal process, there will be curbs on the level of costs for such claims.

The need for action over SLAPPs, which stands for strategic lawsuits against public participation, has come to the fore in the wake of the Ukraine invasion and efforts by oligarchs and others to use litigation to stifle public interest journalism about their activities.

Some 15 months after it first published a call for evidence, the Ministry of Justice said today that its additions to the Economic Crime and Corporate Transparency Bill “will enable the government to bring a swift end to the vast majority of SLAPPs cases, as at least 70% of the cases referenced in a report about SLAPPs, published in April 2022 by the Foreign Policy Centre and ARTICLE 19, were connected to financial crime and corruption”.

The legislation will define the characteristics of SLAPPs relating to economic crime in law for the first time (see end of story).

This sets out that legal action taken to restrain a person’s freedom of speech or that the information within the piece has been released in the public interest to combat economic crime will count as a SLAPP.

Law Society president Lubna Shuja noted that the focus on economic crime meant “some claimants may still use SLAPPs to stifle scrutiny”.

Should a case reach court, the court will have to decide initially whether it meets the statutory definition of a SLAPP and then whether it has a reasonable chance of being successful.

This is different to three-stage early dismissal procedure the MoJ first suggested last July in its response to the call for evidence.

This was that court would first assess if a case was “against activity in the public interest”, then if look at if there was evidence of abuse of process, and finally whether the case had a realistic prospect of success.

The MoJ said it would also impose limits on “the high costs associated with SLAPPs to prevent them from being financially ruinous”, but has not yet spelt out what these would be.

Lord Chancellor Alex Chalk KC said: “We are stamping out the brazen abuse of our legal system that has allowed wealthy individuals to silence investigators who are trying to expose their wrongdoing.

“These measures will protect the values of freedom of speech that underpin our democracy and help better protect reporters who are shining a light on their crimes.”

Justice minister Lord Bellamy added: “As a result of our action it will be easier for the courts to swiftly dismiss cases, reducing the costs and stresses of lengthy legal proceedings.”

Nick Vineall KC, chair of the Bar Council, backed the proposals. “We agree with the government that the present balance is not in the right place. We also agree with the government that this important task is one for Parliament, not for regulators.”

Definition of an economic crime SLAPP

Under the draft legislation, a claim is a ‘SLAPP claim’ if—

  • the claimant’s behaviour in relation to the matters complained of in the claim has, or is intended to have, the effect of restraining the defendant’s exercise of the right to freedom of speech,
  • the information that is or would be disclosed by the exercise of that right has to do with economic crime,
  • that disclosure is or would be made for a purpose related to the public interest in combating economic crime, and
  • any of the behaviour of the claimant in relation to the matters complained of in the claim is intended to cause the defendant—
    • harassment, alarm or distress,
    • expense, or
    • any other harm or inconvenience,
  • beyond that ordinarily encountered in the course of properly conducted litigation.

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