In recent years, we have seen a rise in strategic lawsuits against public participation (SLAPPs) being used to intimidate and silence journalists, charities, and campaigners (SLAPPS claims usually centre on privacy or defamation). These aggressive legal proceedings misuse the litigation process to suppress freedom of expression and discourage public criticism.
The introduction of the Strategic Litigation Against Public Participation (SLAPP) Bill builds on the Economic Crime and Corporate Transparency Act 2023 and will block SLAPPs across all areas of litigation and establish a dismissal process to prevent SLAPPs from proceeding once they have got past initial stages.
If the Bill passes into law, it will become possible for a SLAPP to be struck out before trial, if it is determined by the court that there has been a failure to show that the claim is more likely than not to succeed at trial. Therefore, all claimants will need to demonstrate a likelihood of success before entering the trial process, mitigating against the use of legal proceedings as a method of intimidation.
In addition, the court will be able to deviate from the usual rule that the losing party pays the winning party's costs: in the case of a SLAPP, the court will not automatically adopt the general costs position, unless justified by the defendant's misconduct.
On 23 February 2024, the SLAPP Bill received backing from the UK government. While it represents an encouraging move to prevent the abusive practice of SLAPPs, many campaigners are calling for increased stringency within the Bill.
On 11 April 2024, over 60 anti-SLAPP campaigners wrote to the Lord Chancellor, Alex Chalk MP, asking for a ‘small but important amendment'. Campaigners are concerned that, as currently drafted, the Bill would need the court to apply a subjective test of the claimant's intentions, to determine whether the claim in question is a SLAPP. In many cases, the claimant's intention will be difficult to determine. If there is uncertainty, cases to determine the claimant's intention and whether the claim falls within the definition of a SLAPP, could increase the risk of satellite litigation which could in turn increase the parties' costs and clog up an already over-stretched court system. As the purpose of the Bill is to end spurious claims quickly, campaigners are concerned that the Bill is not fit for purposes and are calling for the subjective test to be replaced with an objective one.
Charities who bring strategic claims often find themselves being targeted by SLAPPs. While the SLAPP Bill represents a positive move towards the protection of free speech, it remains to be seen whether it will have the desired effect of allowing charities and other campaigners to challenge and exercise their rights to free speech and in that way hold the powerful to account.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
