A newly formed group of leading media lawyers has accused the Law Society of failing to represent its members’ interests in relation to strategic lawsuits against public participation (SLAPPs).
The Society of Media Lawyers (TSML) said it was “deeply concerned” that the Law Society’s positive support for SLAPP reform lacked “a proper evidential basis”.
It said: “The Law Society should be putting access to justice, the rule of law and its members’ interests above politics and media sentiment (as it has done in the past with the Bill of Rights Bill, legal aid, the attack on immigration law and access to justice generally).”
TSML is made up of leading solicitors and counsel in private practice who act for both claimants and defendants in defamation and privacy cases – the long-established Media Lawyers Association is for in-house lawyers at media companies.
In a letter to Law Society president Nick Emmerson, TSML argued that “the narrative advanced by certain elements in the media and by pressure groups [on SLAPPs] is a false one, which grossly exaggerates the problem, and unfairly singles out media lawyers for criticism.
“This is concerning, not only because of the oppressive regulatory pressure being placed on our members, but also because media lawyers play an important role in providing access to justice for victims of unlawful misreporting and press intrusion, as well as in preventing serious press abuse.”
It said abusive litigation was “rare and no more common in this area than any other”, pointing to the Solicitors Regulation Authority’s (SRA) thematic review published in February, which found no evidence of abuse.
“TSML is deeply concerned that the Law Society’s policy on the question of SLAPP reform is lacking a proper evidential basis. Furthermore, it does not properly represent the views of the profession, or rather would not if they were properly apprised of the facts.
“Instead, the Law Society appears to have succumbed to media and political pressure and, as a result, to have advanced a one-sided and misleading account of the issues.”
Further, it said, the media and government’s position on SLAPP reform “risks offending general principles of the rule of law and access to justice (as well as the need to protect article 6 and 8 ECHR rights) for victims of press behaviour; principles that should be fiercely guarded by the Law Society even if this means disagreeing with the government of the day”.
The lawyers acknowledged there was “a spectrum of views on the subject”, including within the profession, but criticised the Law Society’s public statements for “enthusiastically” supporting reform.
The letter cast heavy doubt on the only evidence the society has referred to, a “bald statement” that there were 14 SLAPPs in the UK in 2021. It said the source of this – the Coalition Against SLAPPs in Europe – had never identified the cases and, even if they were SLAPPs, they represented a “tiny proportion” of media claims.
The fact that the SRA has previously said it had up to 40 open investigations on SLAPPs was not necessarily evidence of a problem: “We are aware from our members that many of the complaints that have led to SRA investigations have been lacking in merit…
“We believe that many of these complaints were improperly triaged (by way of example, they included SLAPP complaints where the claimant recovered substantial damages and/or where a judge had expressly stated the litigation was not a SLAPP).”
TSML noted too that the majority of members of the Law Society working group on SLAPPs agreed with its sentiments and questioned why the public position was at odds with this.
Among its demands where that the Law Society support TSML in seeking to have a member appointed to the Civil Procedure Rule Committee to help shape the way in which the Economic Crime and Transparency Act 2023 ban on SLAPPs in relation to economic crime was implemented, and also to the government’s SLAPPs taskforce.
In a statement, Mr Emmerson responded: “Many of the Society of Media Lawyers’ members played an active role in shaping our position through our working group.
“The Law Society has to balance its position carefully taking into account the interests of members – both claimant and defendant – access to justice and the rule of law.
“We’re happy to work with the Society of Media Lawyers to further inform our thinking – just as we are happy to hear all positions.”