SLAPPs crackdown - judges to be given greater powers to deal with abusive litigation practices

Judges are to be given greater powers to dismiss lawsuits known as SLAPPs, through government amendments to the Economic Crime and Corporate Transparency Bill.

What are SLAPPs

Strategic lawsuits against public participation, or SLAPPs, are lawsuits and/or aggressive litigation threats which aim to prevent the publication of legitimate criticism or attempts to hold individuals or corporates to account. Defamation, privacy, and data protection claims are common vehicles for such claims.

SLAPPs are often pursued by wealthy individuals or entities who can afford legal fees incurred in court proceedings. Groups such as journalists, campaigners, and whistle-blowers are, however, often unable to afford such costs. As a result, many are forced to retract, amend, or apologise for information they have published when they are sued, regardless of the merits of their words.

In a warning notice published on 28 November 2022, the Solicitors Regulation Authority issued a warning against the use of this type of abusive litigation (for more information on this see here).

The government has now tabled a number of amendments to the Economic Crime and Corporate Transparency Bill in order to crackdown on SLAPPs. The new powers will affect SLAPPs relating to allegations of economic crime, which, according to a report about SLAPPs published by the Foreign Policy Centre, make up around 70 per cent of the SLAPPs issued in the UK each year.

What amendments are being introduced?

The amendments proposed by the government will create a new early dismissal process, that will allow judges to throw out SLAPPs. The early dismissal mechanism will comprise of two tests; whether a case is a SLAPP as defined by the Bill, and whether the claim has a reasonable chance of being successful. According to the Ministry of Justice this will have the effect of putting the onus on the complainant rather than the defendant to prove they have a valid case before significant costs are incurred.

In order to be considered a SLAPP, it is proposed that defendants will have to show that the claim against them meets the following definition:

• the claimant’s behaviour in relation to the matters complained of in the claim has, or is intended to have, the effect of restraining the defendant’s exercise of the right to freedom of speech
• the information that is or would be disclosed by the exercise of that right has to do with economic crime
• that disclosure is or would be made for a purpose related to the public interest in combating economic crime
• any of the behaviour of the claimant in relation to the matters complained of in the claim is intended to cause the defendant—
  • harassment, alarm or distress
  • expense
  • any other harm or inconvenience
• beyond that ordinarily encountered in the course of properly conducted litigation.

The government has also indicated an intention to limit the costs associated with SLAPPs to prevent them from being financially ruinous to defendants on the receiving end of these abusive litigation practices.

Looking ahead

Reacting to these new amendments, Justice Minister Lord Bellamy said: "Our reforms will ensure that journalists can shine a light on unscrupulous individuals who use and abuse our justice system to try and stop them".

Although these changes are welcome, more needs to be done to protect against SLAPPs. Indeed, whilst most SLAPPs issued in the UK relate to economic crime, the reality is that any public interest matter can be subject to a SLAPP. Under the current proposals however, anything falling outside of economic crime would not be protected. As Jessica Ní Mhainín, head of policy and campaigns at Index on Censorship, puts it, these amendments are a “stepping stone rather than a final destination" and what is still needed is "the introduction of a comprehensive standalone anti-SLAPP law as soon as possible".