Calls grow for curbs on misuse of SLAPPs
What is SLAPP litigation?
SLAPP – Strategic Lawsuit Against Public Participation - refers to a lawsuit filed by powerful parties (such as, a corporation or a high profile business person) against non-government individuals or organisations that expressed a critical position on a substantive issue of some political interest or social significance.
SLAPPs aim to censor critical speech by intimidating critics and draining their resources, until they have abandoned their criticism. An important characteristic of this kind of actions is the disparity of power and resources between the plaintiff and the defendant.
Often based upon ambiguous and elastic law provisions, SLAPPs use multiple strategies to exhaust resources and morale, generally including exorbitant claims for damages and allegations designed to smear, harass and overwhelm activists and/or civil society organisations.
SLAPPs have greater chance of success in certain jurisdictions. This success will depend on different factors, such as how expensive legal costs are, the elasticity of laws targeting speech (especially defamation), and the existence of safeguards (e.g. anti-SLAPP statutes or cost awards against abuse of process).
Anti-SLAPP regulations aim to halt potential plaintiffs from filing vexatious lawsuits. They usually allow an early dismissal of such suits, rewarding the costs sustained by the defendant, and provide some measures to penalise abuse, such as a fine on the plaintiff. One challenge in drafting anti-SLAPP legislation is determining how to target abusive claims, without denying rights of those seeking legitimate claims.
European attitudes towards SLAPPs
Anti-SLAPP laws are more developed in USA, Canada and Australia, where they mainly stem from the environmental law context, while in Europe, SLAPPs remain largely unrecognised, with little consideration of their use and impact.
Since February 2018, a group of European MEPs has repeatedly and unsuccessfully been calling on the EU Commission to promote an anti-SLAPP EU directive which would give investigative journalists and media groups the power to request to rapidly dismiss “vexatious lawsuits” and would create a fund for the financial support of media groups resisting such lawsuits. Moreover, the MEPs also proposed the creation of a new EU register that would “name and shame” firms practicing SLAPPs.
At the beginning of 2021, the EU Commission set up an expert group that would assist the Commission in the preparation of respective legislative proposals and policy initiatives regarding SLAPPs. A recent study commissioned by the EU Parliament released in 7 July 2021 further recommended the implementation an anti-SLAPP directive. It looked at models of anti-SLAPP legislation in other jurisdictions, but it recommended that the EU follows a distinctive approach, although good practices can be drawn from these jurisdictions. The study found that the relationship between the rights of pursuers and defendants in defamation cases should be revisited to remedy existing imbalance.
UK Anti-SLAPP Proposals
The proposals unveiled by freedom of speech campaigners on 23/11/21 build upon this growing appetite to update UK and European law for SLAPP actions. The campaigners cover judicial guidance, civil procedure reform and primary legislation, in the hope that their initiatives will make it unacceptable for lawyers to conduct SLAPP actions.
Recommendations focused on:
· Practice Directions/Judicial Guidance
· CPR Reform
· A new anti-SLAPP Law
Practice Directions/Judicial Guidance
Updating practice directions to impose security for costs on claimants (CPR 25) to test the seriousness of a claim.
Strengthening the use of strike-out powers (CPR 3.4) against cases bearing the hallmarks of SLAPPs, making clear that ‘vexatious claims’ include SLAPPs.
Offering training by the Judicial College to judges on how to understand and respond to abuse of process in the context of SLAPPs.
Updating Pre-action protocols setting out steps the court would expect parties to take before going to court. This would include engaging in good faith with the right to reply process and extending the expectation that parties pursue ADR for all claims concerning acts of public participation.
Widening the grounds for dismissal to dispose of SLAPP claims at the earliest possible stage by amending the summary judgement procedure under CPR 24.4 to include claims targeting acts of public participation with no likely prospect of success.
Amending CPR 44(4) to catch claims targeting ‘acts of public participation’, which would enable even those claims of merit under law which are still pursued using abusive SLAPP tactics, to be appropriately sanctioned.
A call for the MOJ to launch a consultation with a view to introducing an anti-SLAPP law in the next Parliamentary session. This would include an early dismissal mechanism to filter out SLAPPs at the earliest possible point alongside robust sanctions to deter the use of SLAPPs.
Courts would be empowered to issue security for costs and, where necessary, civil restraint orders along the lines of those imposed on persistently vexatious litigants. Repeat offenders would then be included in the MOJ’s registry of vexatious litigants. By ‘naming and shaming’ these SLAPP litigants, an important deterrent to SLAPP actions will be created.
To conclude, there is a growing desire to act against SLAPP claims. These new proposals build upon the views of European MEPs. It is expected that the EU will take action sooner rather than later, and it will be interesting to see if the UK follows suit in nullifying the damaging effects of SLAPP litigation.