21st March 2022
SLAPP – strategic litigation against public participation – is a new-ish name for an age-old problem.
Here is L. Ron Hubbard in 1955 advocating law suits against those who were using Scientology materials without authorisation:
“The purpose of the suit is to harass and discourage rather than to win. The law can be used very easily to harass, and enough harassment on somebody who is simply on the thin edge anyway, well knowing that he is not authorized, will generally be sufficient to cause his professional decease. If possible, of course, ruin him utterly”
(The Scientologist: a Manual on the Dissemination of Material, page 157)
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SLAPP is, of course, a pejorative term (as this blog recently averred) – but, for want of a better term, is the best name we have got for a certain thing.
The problem with SLAPP being a pejorative term is that, just as one person’s terrorist can be another person’s freedom fighter, one person’s SLAPP case is another person’s legitimate attempt to defend their reputation and/or privacy rights.
Few if any claimants will say expressly that their case is a SLAPP case – not many are as brazen as L. Ron Hubbard.
And it is possible that what one side considers to be a SLAPP case will genuinely not be considered to be a SLAPP case by the other side.
That said, SLAPP as a term has two useful qualities.
First, it is not limited to any one area of law – for example defamation – and so it implicitly recognises that various areas of law can be (mis)used – not only defamation but also misuse of private information, data protection, confidentiality, intellectual property rights, and so on.
Second, it indicates that certain decisions are being made strategically – or at least, tactically (though TLASS is a less handy acronym) – about the purpose to which law is being used.
Another problem, however, with SLAPP as a term is that its American origins may mislead people into thinking all anti-SLAPP legislation is the same.
In fact, much of what constitutes anti-SLAPP reform in the United States is already part of English law, including the ready availability of costs sanctions and early opportunities for meritless cases to be struck out.
There is no single anti-SLAPP reform that fits all jurisdictions.
So as long as the strengths and weaknesses of SLAPP as a term are borne in mind, it is the best description we have got of a certain thing.
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But – what is that thing?
Well.
One thing it usually is not about is the law or procedural rules being broken by lawyers or their clients.
In almost all SLAPP cases, the lawyers are using the laws and court procedures available to them: the issue is the ulterior purpose to which those laws and court procedures is being put.
This is why, in my view, attempts to ‘name and shame’ the lawyers involved are misconceived.
(Though, for completeness, I know and deal with many of those who are involved.)
The lawyers that have so far been publicly named are but a sub-set of the lawyers competent and willing to take on such claims.
And – frankly – you do not need parliamentary privilege to ‘name and shame’ the lawyers: all you need to do is look at the case reports to see who they are, and at their own websites to see how they promote their practices.
I happen to be a media defence lawyer (among other things) – acting for journalists, campaigners, and politicians – and I chose not to act for claimants in these sort of cases, but that is entirely a personal choice.
In my experience of seeing dozens of threatening letters (of varying quality), almost all the threats are within the scope of law and practice as it stands.
And if a threatening letter did not come from one firm, I can imagine pretty much the same sort of letter coming from a dozen other firms.
The problem is with the law and practice, and so – if you sincerely want to solve the problem – that is where the solution will be.
Although therapeutic, ‘naming and shaming’ the lawyers involved is a cul-de-sac.
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Another thing to note is that, in England, SLAPP is not just about costs – even if the amounts involved can be eye-watering.
Yes, London claimant lawyers are expensive – too expensive.
But: American lawyers are expensive too, sometimes even more expensive than English lawyers.
Media lawyers in other jurisdictions are also high-charging and highly paid.
Yet, it is in England that certain cases are brought – and threatened.
This is because the problem with SLAPP cases in London is not just the costs, but how those costs can be easily weaponised as part of of a legal threat.
London litigation is often not a game of thrones, but a game of costs.
The dynamics of many cases will come down to costs, and how costs consequences can be inflicted and deflected.
And how this happens comes down to the structure and practice of the relevant law.
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But perhaps the biggest difficulty about discussing SLAPP in England is that the discussion can sometimes seem abstract.
SLAPP is a bad thing, and nice people are against bad things.
Let’s boo at SLAPP!
But the challenge is to make any SLAPP reform work practically – to make a difference in actual cases.
There are a number of ways law and practice can be misused, and so any reform needs to be set against actual cases to see if the reform would make any practical difference.
One thing I recall from the campaign which led to the Defamation Act 2013 is that the key case for mobilising support – the misconceived and illiberal claim brought by the British Chiropractic Association against science writer Simon Singh – turned out not to be directly relevant to the legislation that was then passed.
Little in that Act would stop another such case being brought again – and indeed it was the court’s own decision in that case, and not any legislation, that has stopped further similar claims.
There can be a practical disconnect between cases that attract public concerns and the reforms then promoted for dealing with such concerns.
That is why this blog is going to look over the next few days at a ‘data-set’ of SLAPP cases, to see what the actual problems are and to see what, if any, solutions can be put in place to stop similar cases being threatened and brought.
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In the meantime, I would suggest anyone interested in SLAPP, and what practical reforms can be implemented to prevent such cases, look at the following:-
– the transcript of the oral evidence at the foreign affairs select committee on the use of strategic lawsuits against public participation (or watch it here);
– the excellent and comprehensive work by Susan Coughtrie and the Foreign Policy Centre on SLAPPS – including this policy paper;
– this House of Commons library briefing on SLAPP; and
– the UK government’s recent call for evidence on SLAPP.
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Haven’t we seen the other side of the coin in the Post Office “Horizon” cases where the Post Office, defendant in the civil case that blew this wide open went through the most appalling manoeuvres to run up and make the whole thing as expensive and time-consuming as possible for the group litigation claimants – to the degree that even an appeal court judge, in refusing permission for a particularly silly appeal by the PO, said he had sympathy for that viewpoint of the claimants.
In the end the claimants had to settle for a derisory amount in “full and final settlement” which was nearly all taken up by the legal costs.
And of course they’re still waiting for justice.
I think your reference to the Horizon case, in the context of the challenges regarding SLAPP practices, is crucial.
It would be reasonable to infer from the name and the majority of examples that it is the plaintiff of a SLAPP-profile case that is the party attempting to use the law to their advantage. The Horizon case shows that such practices can also be encountered by plaintiffs, for example when dealing with a corporate defendant that is potentially guilty of widespread wrong-doing.
Indeed, SLAPP disputes resemble poker (the card game) more than the resolution of a legal dispute, in that those with the resources to purchase the most highly skilled legal advice can often “buy the pot” and “win the game”, even when their “hand” (the facts in their favour) are far out-weighed by those opposing them.
Unless/until our system of justice acknowledges this – and designs in protections to safeguard “the little guy” – I would suspect that this problem will be with us for years to come.
As a lay advice worker before retirement I have also seen instances of people with legitimate claims against large organisations bullied out of them. Solicitors for the corporate being sued will tell the claimant that, if the claim fails, they will ask the court to agree that it was frivolous, and ask for costs, even in the small claims track. It is often enough for the claimant to withdraw the claim – which itself might well be worth far less than the potential costs being mentioned.
So yes – there is of course a problem with SLAPPs, but it seems to me to be just one aspect of a wider problem with the whole costs regime.
There is a third “useful quality” to the term SLAPP. And it is one that is almost too obvious to mention.
It is that it closely resembles the English word “slap” – and, in this context, instantly evokes to non-lawyers the phrase “to slap with a writ” or perhaps “to slap with a lawsuit”.
That is certainly one of the main reasons why the term was first coined in the 1980s, apparently by University of Denver Professors George W. Pring and Penelope Canan.
And, while it amounts to little more than a linguistic trick, that invented term has served very well to give a meaningful identity to this category of cases, and to raise their profile as a grievance needing addressing.
By giving a vivid and memorable name to something that had hitherto been “nameless”, the distinguished Professors transformed it at a stroke, bringing a fuzzy concept into sharp focus.
They also provided a mental image, following Wittgenstein’s theory of language, which served their moral purpose perfectly: you don’t need much legal knowledge to understand that if giving someone a slap is a bad thing, so is giving someone a SLAPP.
In their quest for accuracy and precision, lawyers sometimes overlook what PR people instinctively understand – that, beyond their legal utility or accuracy, words have a poetic dimension which can haunt the human imagination in profoundly powerful ways.
“words have a poetic dimension which can haunt the human imagination in profoundly powerful ways”
I am so glad I am a lawyer, and not a PR.
Fair enough! :-)
SLAPPs are a huge topic that I could never do justice to, especially in a comment, so I’ll just make some observations and questions. I also note that I am not a lawyer.
You mentioned UK cases taking a long time, and US cases taking longer. In the Commons transcript (which I won’t be able to finish tonight) they mention cases taking 1-2 years. As a high profile example in the US, Sarah Palin vs New York Times was filed in June 2017 and the trial happened in February 2022. Palin appealed the decision on March 17th, so that case is still ongoing at over 4 1/2 years.
A plea: Please can we not adopt the term “actual malice”. In US practice it means something along the lines of “knowing that a statement is false or ignoring credible evidence that it is false”. Non lawyers pick up on the phrase (presumably because it isn’t in Latin), and think that it means you hate the target.
Some questions: is it possible for defendants to get pro bono representation for SLAPP cases, or is that primarily a US phenomenon, or are these cases too lengthy to defend for free?
Why doesn’t fee shifting (which I am under the impression is the default in the UK) protect defendants from frivolous suits? If the suit is utterly without merit, why aren’t lawyers eager to take sure-fire wins, and get all their expenses paid by the plaintiff? To limit the defendants costs they could use a no-win no-fee arrangement.
All strength to your elbow – the law should be framed to restrain rather than facilitate bullies.
Do we really need to bother with libel any more. Sticks and stones etc. Leave it to the PR wonks.
If we really must keep it then relegate it to the small claims court.
It isn’t just sticks and stones. Libel can adversely affect livelihood, particularly in cases where the plaintiff’s profession consists of verbal output. Because publishers et al. can be included in a libel action, they or their insurers are often eager to distance themselves from a client on whom the mark of Cain has been smeared, however perversely.
Libel can have very real consequences. Imagine that you are an employee of the civil service or a moderately woke corporation and someone falsely claims that you used a serious racial slur to them and you lose your job. Or imagine that you were falsely accused of being a paedophile by a fantasist looking for attention (as happened to a number of politicians falsely accused by Carl Beech aka Nick) and you lost not just your livelihood but also your marriage.
These harms can be very serious and there needs to be a law against libel just as much as there needs to be a law against assault, and for the same reason. We should deter people from committing harm against their fellow citizens and punish them when deterrence fails.
That doesn’t mean I approve of absolutely everything about current libel law, but I do strongly disagree with your suggestion of abolishing the offence or relegating it to the small claims court.