In our blog In defence of privacy and the judiciary we discussed how the press had misreported the decision in HRH the Duchess of Sussex v Associated Newspapers Ltd [2021] EWCA Civ 1810 and, with the assistance of the government, had weaponised that misreporting to lobby for the reform of privacy law. We are now seeing a similar attack on the law of defamation, with the acronym SLAPP (strategic litigation/lawsuits against public participation) being used to spread panic much in the same way as the three letters ‘NDA’ did a few years ago. The gateway to this debate has been the invasion of Ukraine and the criticism of libel lawyers who have undertaken work for Russian oligarchs in the past.
What is a SLAPP?
A strategic lawsuit against public participation is a claim that is brought or threatened with the intention of silencing a claimant’s critics. The claimant normally does not want the matter to proceed to court, much less to trial, instead hoping that the risk of having to pay costs will lead to an early capitulation from the defendant.
To a point, this is how an adversarial legal system and the ‘costs follows the event’ rule, are intended to work. The civil justice system and its Civil Procedure Rules are designed to keep cases out of court where at all possible. The prospect of a trial, and the potentially severe consequences of losing one, focus the mind of publishers, both pre and post publication, and have arguably improved press standards. Though relatively few defamation cases against the traditional media reach trial, many of those that have resulted in victories for claimants, demonstrating that journalists and editors do make errors of both fact and judgement.
A true SLAPP is made to suppress the publication of true facts, honest opinion or matters of public interest that are being reported in a responsible way and where the claimant knows this to be the case, but is dishonestly arguing otherwise.
Who decides what a SLAPP is?
So, who determines whether a defamation claim is a bona fide attempt to vindicate an unfair attack on an individual’s reputation or a SLAPP? The Solicitors Regulatory Authority (‘SRA’) published a Practice Note in March which suggests that some of this burden should fall on both the claimant and defendant’s solicitors (the latter being bound to report serious misconduct). Since the Practice Note has been published, this has already happened, with a claimant’s former solicitors being reported by their opposite numbers.
The Practice Note gives an example of a SLAPP as a case “…in which the underlying intention is to stifle the reporting or the investigation of serious concerns of corruption or money laundering by using improper and abusive litigation tactics.” It warns against:-
- The making of excessive or meritless claims, aggressive and intimidating threats;
- acting in a way which fails to meet the wider public interest Principles; or
- otherwise acting in a way which breaches a solicitor’s duties (as defined by the Principles in the SRA’s Code of Conduct).
The relevant Principles referred to are Principles 1, 2, 3, 4, 5 and 7: that solicitors should always act in a way that upholds the constitutional principle of the rule of law and the proper administration of justice; upholds public trust and confidence in the solicitors' profession and in legal services; with independence, with honesty; with integrity; and in the best interests of each client.
The Practice Note emphasises the need for solicitors to properly balance their duties. In other words, acting in the best interests of their client is not a trump card. A solicitor’s duty to the court includes only making assertions or putting forward statements, representations or submissions to the court or others which are properly arguable.
Notably, none of the examples or case studies in the Practice Note concern defamation proceedings.
Cutting through the matter, a lawyer’s role in a potential SLAPP seems to touch upon four main issues.
- The right to legal representation and the distinction between a lawyer and their client.
- The veracity of a claimant’s account.
- The merits of any other potential defence.
- The tenor of the communication and demands made.
We consider each briefly below.
The right to legal representation
The right to legal representation is fundamental. It is improper to deprive litigants of this right simply because they are unlikeable or what they are accused of is distasteful. Criticising lawyers who act for such parties risks this indirectly. A lawyer is not their client. The recent ‘naming and shaming’ of a handful of leading defamation lawyers by the press and politicians (including an overzealous US congressman) smacks of populist opportunism and ignorance.
The veracity of a claimant’s account
The process of taking instructions from a client should normally involve scrutinising their account and sometimes asking difficult questions. However, it is not a lawyer’s role to undertake independent due diligence on a client’s account. More importantly, it is not their job to judge a client. A lawyer’s role is to argue a client’s case. In the context of defamation, this will often mean challenging what has been said about them in the public domain. If lawyers were judgmental this would again restrict access to justice.
Of course, lawyers must not argue anything which they definitively know to be untrue, or which is entirely misconceived as a matter of law. To do either risks regulatory, and possibly even criminal, sanction.
The merits of any other potential defence
There are numerous defemation defences, but aside from truth, the most common defences of media publication cases are honest opinion and publication on a matter of public interest (sections 3 and 4 of the Defamation Act 2013 respectively). This is where the integrity of the term SLAPP begins to look very shaky or at least highly abstract. There may well be cases in which it is obvious that a statement is honest opinion (in which case a legal threat should be given short shrift), but in many cases the issue won’t be cut and dried, and will require judicial interpretation. This is even more so with a potential public interest defence. The fact that a topic is in the public interest is not sufficient to establish a defence (if this was the case then a public figure could arguably never win a libel claim). The publisher must have a reasonable belief that the publication of a specific statement(s) is in the public interest. The burden here falls on the publisher and it will rarely be possible for a claimant lawyer to determine that such a defence is bound to succeed, not least because they cannot ‘look under the bonnet’ of the publication process.
Claimant lawyers should not put forward arguments that are plainly unarguable, but they should not be critcised for putting forward a case that is reasonably arguable. It is not for them to preempt and prejudge a defence that might not be raised.
The tenor of the communication and demands made
Assuming a letter has been written by a lawyer in good faith, there is nothing improper about asking that a defendant refrain from publishing an allegation (or apologise for making one). Indeed, this is anticipated in the Pre-Action Protocol for Media and Communications Law at paragraph 3.1, which states that a claimant should stipulate which remedies they are seeking in a letter of claim (if a claimant sues then they will normally be seeking an injunction compelling the defendant to remove online content and prohibiting them from republishing the allegations).
There is a good case to be made that some solicitors need to dial down the tone of their letters, including some who work at well-known defamation firms. Overly aggressive letters rarely benefit a client; they can get an opponent's back up and delay the resolution of a dispute. If the matter proceeds to court, they can cast the claimant in a poor light. They rarely intimidate experienced defendant lawyers.
That said, we have an adversarial system and all parties to litigation must recognise that lawyers are entitled to robustly advance their client’s case. Those who complain about so-called SLAPPS are normally intelligent and knowledgeable enough to recognise rhetoric when they see it.
A matter for the court
The determination of whether a claim has any merit, is being litigated properly or is an abuse of process must surely lie with the Court. The Court can be tasked with determining whether a publication is true, an honest opinion or has been made on a matter of public interest - thus availing a defendant publisher of a defence under sections 2, 3 or 4 of the Defamation Act 2013. If a defence is strong enough, the Court can strike a claim out or grant summary judgment early on in proceedings. In these circumstances, the claimant will be ordered to pay the defendant’s legal costs. If the claim is wholly without merit, costs could be ordered on the indemnity basis. If a claimant has lied in their pleadings or evidence, they could face contempt proceedings or a prosecution for perjury – rare, but not unheard of (see R v Jeffrey Archer and R v Jonathan Aitkin). If a solicitor has acted dishonesty or there are serious concerns about their conduct, they are likely to face regulatory action.
A real issue arises with equality of arms, where a defendant cannot afford to defend a claim, never mind risking an adverse costs order with the possibility of bankruptcy etc. However, this is an issue in any civil area of litigation where there are no alternative funding arrangements or insurance available. Equality of arms is hardly an issue for national newspapers and other publishers such as, say, Harper Collins (owned by Rupert Murdoch’s News Corp). They are better resourced than virtually everyone who features in their pages (most of whom can only consider bringing a claim if they can find lawyers willing to act on a no win, no fee basis). Their ultimate owners are frequently as wealthy as the high-net-worth individuals accused of bringing SLAPPs. They have well-lawyered legal teams and are not capable of being intimidated into conceding meritless claims. This is particularly so where the claimant is wealthy and the defendant could therefore reasonably expect to recover most of their legal costs. If they choose to settle a claim, it is because they lack confidence in the outcome.
Is there something wrong with UK defamation law itself and what is the government suggesting needs changing?
But what if all the money and lawyers in the world can’t help you defend a claim because the substantive law is unfairly tilted in favour of claimants? In March, Deputy Prime Minister and Lord Chancellor Dominic Raab suggested this was the case and announced proposals to target SLAPPS by ‘strengthening legislation’ and ‘introducing court checks’.
In a consultation paper dated 17 March 2022 the Ministry of Justice summarised some of the changes that could be made. These include amending the Defamation Act 2013 to strengthen the public interest defence. However, section 4 of the Defamation Act 2013 is already non-restrictive. As the consultation paper acknowledges, it is already being interpreted broadly by the Courts (see the Court of Appeal’s decision in Economou v De Freitas [2018] EWCA Civ 2591).
Another area of consideration is the introduction of a requirement to prove that a defamatory statement has been made maliciously. This means making a statement knowing it was false or with reckless indifference as to whether it is true or not. Like most torts, defamation is intended to compensate a claimant who has suffered injury – in this case, reputational injury. The cause of that injury may have been deliberate or unintentional. Requiring a claimant to establish malice would be a green light for sloppy journalism. Conversely, strict liability for defamation encourages better journalistic practices and results in better quality journalism.
Raab’s statement and the consultation paper also refer to other measures, including enabling courts to throw out suspected SLAPPs earlier in proceedings and impose civil restraint orders to prevent people from bringing repeated legal challenges. But judges are already able to strike out claims that are an abuse of the court’s process and impose civil restraint orders, and so this isn’t a new proposal at all.
One final proposal is capping the costs recoverable from a defendant. Cost capping (or fixed costs recovery) already exists in some forms of civil litigation and its expansion has been much debated over the past decade. It’s not immediately obvious how costs capping will solve any SLAPP problem without punishing bona fide libel claimants. Notably, section 40 of the Crime and Courts Act 2013 would have offered the press considerable protection from SLAPPs if it had ever come into force. This provision would, in most circumstances, have prevented a costs order being made in a claimant’s favour where they had failed to use the arbitration scheme of an approved regulator. The provision was scrapped following intensive lobbying by the press.
We’ve been here before
This is not the first time that there have been calls to make life tougher for would-be libel claimants. The Defamation Act 2013 – much debated at the time and introduced by a coalition government less than a decade ago –was introduced with that purpose in mind and made a number of defendant-friendly reforms, including introducing a ‘serious harm [to reputation]’ threshold, an additional ‘serious financial loss’ threshold for corporate claimants (which has all but eliminated corporate libel claims), a single publication rule which brought limitation for online publications in line with hard copy, and a system of protection for so-called intermediaries; as well as codifying and broadening the public interest defence.
It is difficult to see what further meaningful changes can be made to defamation law without tearing up all existing law and introducing a US-style system, which fiercely protects so-called free speech (to the point of protecting hate speech). In the UK there is a more careful balancing act between freedom of expression and the protection of reputation. We should be careful what we wish for.
Talks of SLAPPs is greatly exaggerated. Russian oligarchs make up a tiny fraction of libel claimants. Every day we are contacted by individuals who have had their reputations unfairly maligned. It would be a travesty if they were denied justice because of this populist drumbeat. They may not like it, but journalists and other publishers cannot be given free rein to make serious allegations without being accountable.