Read the Riot Law to the Powerful: Strategic Lawsuits Against Public Participation | Dorsey & Whitney LLP

Summary

The UK government has announced that it is ready to introduce legislative reform aimed at countering the recent rise in a perceived form of tactical libel action, known in the press as “strategic public participation suits”, Where “SLAPP”.

What are SLAPPs?

SLAPPs are tactical legal actions brought by influential and powerful people such as state actors or private oligarchs. The purpose of this litigation is to stifle unwanted public criticism or investigations of powerful public figures. Targets will typically include journalists, activists and academics.

SLAPPs usually take the form of libel actions which are threatened or brought in the English courts. These actions include claims for substantial damages for reputational damage and compensation for legal fees. Although primarily associated with defamation claims, SLAPPs can be based on other causes of action, such as allegations of data protection, privacy, and other torts.

The court in England and Wales has a reputation for being plaintiff-friendly in its handling of libel cases; under English law, the burden of proof is effectively shifted to the defendant, who must either establish that a potentially defamatory statement is true or show that another legal defense is available.

Although there is a general perception that these claims may be unfounded, SLAPPs have worked as an effective tool to control public discourse: the threat of financial ruin (with considerable legal costs and claims for damages) and reputational/personal harm, have given SLAPP a reputation for “intimidating” investigators and journalists into silence. Claims may also be consolidated and/or brought between jurisdictions to enhance their power.

Plaintiffs in SLAPP actions often have little or no interest in the merits of the claim itself, or even the intention to proceed to trial. Instead, the threat of litigation is intended to quickly end an unwanted discussion or post before the case reaches the courtroom steps.

The risks posed by SLAPPs

SLAPPs can have a chilling effect on investigative journalism, academic research and whistleblowing activities. By aggressively arguing against potentially sensitive investigations or, in some cases, mere alternative opinions—often via an ongoing chain of threatening legal correspondence—plaintiffs can potentially protect themselves from exposure to damaging disclosures, or even convenient but false stories.

Indeed, since few individuals or journalists have the resources to fight a determined, well-funded plaintiff to trial, in the majority of cases SLAPPs successfully achieve their goal of silencing the potential defendant.

SLAPPs have been viewed, at least in the popular press and media, as a legal tactic perpetuated by wealthy individuals or oligarchs; especially those from the Russian Federation and the Commonwealth of Independent States. As such, the use of SLAPPs has come under increasing scrutiny following the Russian invasion of Ukraine in February 2022. In the words of the current UK Secretary to Justice, Dominic Raab: “we will not let those who fund Putin exploit the legal jurisdiction of the UK to muzzle their critics”.

Proposal for legislative reform

On July 20, 2022, the Department of Justice released a document titled “Strategic Public Involvement Prosecutions (SLAPP): Government Response to Call for Evidence” (available here).

The report confirms that the government intendsmovement[e] resolutely to eradicate SLAPPs”. The proposed reform focuses on the introduction of a three-part test, designed to help early dismissal of unsubstantiated claims.

Courts will be required to consider the following three questions:

1. Is the case against activity in the public interest?
2. If so, is there evidence of an abuse of process?
3. If so, is the case sufficiently founded?

As currently envisaged, the legislation will include a clear definition of “public interestfor the purposes of the first stage, and an established set of common characteristics of SLAPPs to assist in the second stage. The third step will focus on whether there is at least a realistic prospect of success.

Notably, the test is not limited to the context of defamation (which, as noted above, is the complaint most often associated with SLAPPs). Instead, it was deliberately drafted broadly enough to encompass other grounds of action, such as confidentiality claims. As noted above, this evolution is necessary to encompass the range of contexts in which SLAPPs are commonly used.

The ability for SLAPP targets to obtain early dismissal based on a clear legislative framework is an improvement over heavily factual and inconsistent case law; at present, this is the only way to achieve the same result.

Future Cost Reform

A common feature of SLAPPs – and one of the main reasons for their success as an intimidation tactic – is the threat of increased legal costs associated with defending a claim. While wealthy individuals and large corporations can afford to fund a baseless claim knowing it can be ignored before legal proceedings are fully initiated, ordinary people find it much more difficult.

The report therefore proposes the future introduction of a “formal cost protection regime…to protect SLAPP defendants from the risk of excessive costs and allow unfounded claims to be properly defended”.

While the specific nature of any cost caps and plan design will be explored in depth by the Civil Procedure Rules Committee, the report notes that going forward, “punitive damages may be a particularly appropriate reform measure in a SLAPP context”.

Moreover, while theprecise levels of any default cost caps for SLAPPswill require more attention, the report says the government is tentatively persuaded “that it might be wise to reverse the levels currently [Environmental Costs Protection Regime]with, for example, the defendant’s default cost cap set at £5,000”.

Any SLAPP cost regime would be implemented through secondary legislation, once primary legislation establishing the above three-part test has been passed.

Conclusion

The proposed introduction of legislative reform to address the risks posed by SLAPPs will be welcomed by current and future targets of these unsubstantiated claims.

At the same time, the report serves as advice to parties wishing to control public discourse: the silent may well become the silent.