Lawyers question effectiveness of new anti-SLAPPs law

David: Bill seeks to protect freedom of expression for everyone

The government last week backed a private member’s bill aimed at extending the new law on SLAPPs beyond economic crime to all types of litigation.

However, lawyers have questioned whether the Strategic Litigation Against Public Participation Bill, put forward by Labour MP Wayne David, will achieve its aim.

The bill, which received its second reading last week, replicates the SLAPPs provisions of the Economic Crime and Corporate Transparency Act 2023.

It defines in law what a SLAPP is, requires claimants to prove it has a reasonable chance of success to advance it in court, and protects defendants from costs orders unless their conduct justifies one.

The government made a commitment to legislate to tackle SLAPPs outside of economic crime as soon as parliamentary time allowed.

It said the use of SLAPPs was spreading beyond Russian oligarchs and allies of Vladimir Putin into new crimes, “including victims of sexual harassment being silenced by their abusers, and other misconduct such as landlords using heavy-handed tactics to mute tenants suffering in their homes”.

Lord Chancellor Alex Chalk KC said: “This government has already proved its commitment to cracking down on those with deep pockets who abuse our courts, so we thank Wayne David for bringing forward this important legislation.

“Free speech and the free press are lynchpins of our democracy, and to muzzle people in this way is chilling. We want people to feel confident standing up to the corrupt, knowing the law is firmly on their side.”

Mr David added: “Well-heeled corrupt and malicious elites have been using SLAPPs to intimidate and threaten journalists, community campaigners, academics or anyone challenging them and speaking out in the public interest.

“This important bill seeks to protect freedom of expression for everyone, and I am pleased that it has the support of the main political parties.”

Baroness Stowell of Beeston, chair of the House of Lords’ communications and digital committee, also welcomed the bill; the committee has been campaigning on SLAPPs since 2022.

“The proposals to empower judges to dismiss spurious claims before trial will be important in ending the pernicious and dangerous use of SLAPPs…

“The introduction of a costs protection scheme will also be important in protecting journalists from extortionate legal bills run up by claimants. We had proposed a SLAPPs defence fund to achieve similar objectives. When [the bill] comes to the House of Lords, we will look forward to supporting it.”

However, the Law Society said it was concerned about the bill’s “workability and potential unintended consequences”, arguing it should include an objective test to define a SLAPP case and “significant re-drafting” of what was defined to be ‘in the public interest’.

President Nick Emmerson said: “We also question whether the legislation, as currently drawn, strikes the correct balance between rights to respect private and family life and rights of freedom of expression under the European Convention on Human Rights.

“Our expert SLAPPs working group has identified areas that require further analysis, including whether the definition of a SLAPP should also cover potentially abusive behaviour by the defendant in a case, either in the course of their defence or a counterclaim.”

Writing in The Guardian last week, solicitor Gill Phillips, a legal consultant and the newspaper’s former editorial legal director, said that simply copying the provisions of the 2023 Act was “a missed opportunity to get something on the statute books that is really effective and sends the right deterrent message to those who continue to abuse the justice system”.

The good features in the bill – the early dismissal mechanism and costs protection – “have the potential to be undermined by the inclusion of a subjective inquiry into the claimant’s mind, a notoriously difficult exercise, potentially time consuming and costly, which could undermine the law’s effective application”.

The bill says a claim is a SLAPP if, among other things, “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”.

Ms Phillips said the “new, overly narrow definition of public interest” was also a worry.

She pointed to the UK Anti-Slapp Coalition’s model law as an alternative. This sets out three necessary conditions:

  • A quick and early mechanism that will require claims targeting public participation to meet a higher threshold in order to advance to trial;
  • Costs for SLAPP targets to be kept to an absolute minimum – with awards to targets on a full indemnity basis; and
  • Exemplary damages for cases where the claimant has exhibited particularly egregious conduct, and where the time and psychological harm caused to the defendant needs to be compensated.

“While it may not be possible to reflect within David’s bill the wholesale change of language and approach of the coalition’s model law, it is deeply disappointing that none of the flaws and deficiencies identified in the [2023 Act’s] anti-SLAPP provisions have been addressed,” Ms Phillips said.

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