Welcome to 'The Libel Bible' – a six-part article series on all things defamation. In this comprehensive series, we delve into the complexities of defamation and the law that surrounds it in the UK. With discussion on fundamental principles and commentary on recent cases, this series provides an informative insight into the intricate world of freedom of expression and reputation protection in today's progressive society.
In this article, we take look at SLAPPs, how they're perceived in the UK, and how it has impacted legislative change.
In 2021, the journalist Eliot Higgins published a number of tweets containing links to articles alleging that oligarch Yevgeniy Prigozhin was connected to the unlawful activities of the paramilitary organisation known as the Wagner Group. The articles described the investigation conducted by Mr Higgins' Bellingcat Foundation into Mr Prigozhin's business affairs. Amongst other things, the articles implied that Mr Prigozhin was using his powers to discredit, harass and threaten independent journalists. Mr Prigozhin filed a claim for defamation against Mr Higgins personally, as opposed to the organisations behind the articles. Mr Higgins maintains the case was brought to cause him "maximum personal distress" and to stifle genuine public debate.
What are SLAPPs?
The defamation claim has been referred to as a classic example of a strategic lawsuit against public participation, known as "SLAPPs". SLAPPs are abusive actions used to censor works and discourage public criticism, by intimidating authors through the threat of expensive and time-consuming litigation. Typical claimants include high net-worth individuals and corporations, and typical defendants include authors, journalists, and publishers seeking to write critical material regarding the claimants.
Typically, SLAPPs are defamation claims which lack legal merit. They can also include elements of privacy, confidentiality, and data protection law. However, the intention of the claimant in a SLAPP action is not necessarily to reach trial, but instead to draw out proceedings, apply financial pressure to a defendant, and otherwise cause the defendant to revise or withdraw the published material. This is in contrast to how defamation claims should be used – to protect or restore an unlawfully damaged reputation.
SLAPPs have two key features:
- they target acts of public participation, such as whistleblowing, academic research, or investigative journalism; and
- they aim to prevent information that is of serious interest to the public from being published or seek to have it withdrawn from circulation or otherwise revised.
The UK as a forum
The UK is considered to be one of the more desirable jurisdictions in which to bring SLAPP claims for several reasons.
Firstly, defending a defamation claim in the UK can be prohibitively expensive and time-consuming. Regarding costs, it is difficult to defend a claim through to trial for any less than £100,000, and generally, it will cost considerably more because a party will generally need solicitors, a barrister team, and extensive factual and expert evidence.
Secondly, defamation law in the UK somewhat favours claimants. This is because, generally, the defendant will have published a piece of investigative journalism in some form, which was pieced together from sources other than the claimant, and they are then reliant on the defence of truth, alternatively a defence that publication was in the public interest when defending the claim. There is therefore a heavier evidential burden on the defendant when defending than on the claimant trying to prove their claim. Journalists in particular are faced with having to prove the truth without revealing their sources, which can be a delicate balancing act.
Thirdly, UK courts are ripe for libel tourism, with judges having consistently allowed defamation cases to proceed as long as non-UK based claimants can show a reputation in the UK. The threshold is low as claimants can establish a reputation in the UK if they own a home, have business dealings or have children in school in the jurisdiction. Establishing this type of reputation in the UK is not generally an issue for SLAPP claimants who have ample funds.
Legislative change
In October 2023, the UK passed its first anti-SLAPP legislation in the form of the Economic Crime and Corporate Transparency Act (the Act), designed to provide defendants with increased protection against SLAPPs.
The government appears to have been motivated by an increase in the number of SLAPP cases in the past few years. Whilst the figures are imprecise, and the matters that settle before a claim being filed are not included in these numbers, the Coalition Against SLAPPs in Europe (CASE) estimates there were 14 cases in England and Wales in 2021, up from 2 in 2020.
One of the options now available is an early dismissal mechanism. This mechanism will allow the court to evaluate whether a case is a SLAPP, based on its newly defined meaning in the Act, and whether the claim has a reasonable prospect of success. The onus will be on claimants to prove the case is likely to succeed. However, a mechanism already exists to dismiss cases early that had no prospect of succeeding, and it seems unlikely this new mechanism will set the bar any higher, so it is currently unclear how significant this change really is.
The Act also refers to the existing Civil Procedure Rules, stating that such rules must be exercised such that, in the case of a SLAPP claim, the court may not order a defendant to pay the claimant's costs except where the misconduct of the defendant justifies such an order. Again, such principles already exist in UK litigation, so it is unclear how this change will affect SLAPP cases going forward.
In addition, the new legislation will likely only apply to economic crime. This has, of course, disappointed campaigners who wished for greater protections to be in place against SLAPPs across the spectrum of public interest speech.
It is therefore a matter of waiting to see how the Act will impact the courts and parties dealing with cases of SLAPPs.
Read the original article on GowlingWLG.com
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