Government Announces Proposal For New Measures In Response To The Increasing Use Of SLAPPs

The Government has recently announced proposals for new measures in response to the challenges presented by the increasing use of SLAPP.

What is a SLAPP?

SLAPP is the short form for Strategic Lawsuits Against Public Participation, a form of defamation, data protection or privacy-related litigation brought by super-rich individuals or large corporations against journalists, authors and campaigners to intimidate them with aggressive legal battles and substantial legal costs into abandoning investigation into wrong-doing and publishing of critical materials.

SLAPPs are shown to have a chilling effect on free speech and press as the media and publishers often back down under threats of financial ruin, or even avoid touching upon sensitive issues altogether. SLAPPs without merit are also an abuse of the justice system.

In March 2022, the Government launched a public consultation on reforms to tackle SLAPPs and proposed new measures in July, amongst which most notably are a new three-part test to strike out SLAPPs at an early stage and a cost protection regime.

Striking out SLAPPs at an early stage

While the Government does not propose a definition of SLAPP in order to preserve flexibility to utilise different areas of law to protect the reputation of legitimate claimants, it intends to introduce a new statutory early dismissal process to strike out SLAPPs. This process will be in three parts:

Costs protection regime

Extortionate legal costs are identified as the key threat of SLAPPs. Therefore, the Government is considering various measures to tackle the issue of costs. One of the measures under consideration is to give the Courts the power to order a SLAPP claimant whose claim has been struck out at the early dismissal process to bear all of the costs of the proceedings and before proceedings were issued.

Another measure to explore is cost capping for defendants. The mechanism and levels of cost capping is an issue to be discussed by the Civil Procedure Rule Committee.

Existing defences in defamation

Reforms to the law of defamation, and more specifically, to the Defamation Act 2013 have been suggested. In the law of defamation, a defendant can rely on various defences such as truth, honest opinion and public interest. In the context of SLAPPs, however, these defences may come too late to the rescue.

First, SLAPPs aim to financially intimidate the publishing parties into backing off even before the claim reaches the Courts. The mere prospect of a lengthy and costly legal battle is a threat serious enough and thus parties being sued are likely to be deterred from even mounting a defence, even if it may well be meritorious. Secondly, the defences place the burden of proof on the defendants and the process of establishing a defence may well be very costly.

Whilst the Government does not identify a need to reform the law of defamation, the protection offered by conventional defences appears to be inadequate to those who are threatened by the ultra-rich in the pursuit of truth and accountability.

More concrete plans for reform are expected in the near future. These will certainly change the already complex landscape of litigation in defamation, privacy and data protection.