22nd March 2022
Sometimes I give blogposts the wrong titles.
Yesterday, the post here had the title: Is there a SLAPP problem in the English courts?
This is a good – and urgent – question.
The problem was that the post did not answer the question, and instead it set out some preliminary views about SLAPP – that is an acronym for ‘strategic litigation against public participation’.
What I should have done before setting out these preliminary views was to explain SLAPP – and I am sorry I did not do so.
Some people even told me on Twitter that they had to google ‘SLAPP’ so as to understand my post.
This post seeks to remedy the deficiency of yesterday’s post.
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SLAPP is a term to describe the misuse of the litigation process for the purpose of minimising or eliminating public and media scrutiny.
It is an American term and it appears to date from 1996.
There have been, in turn, various anti-SLAPP laws in America.
The reason why SLAPP is now seen as an issue here is a spate of illiberal legal claims brought (or threatened) in the High Court in London which appear to have the ulterior motive of minimising or eliminating public and media scrutiny – in particular scrutiny of various oligarchs and foreign corporations.
The United Kingdom government has just announced that it is considering introducing anti-SLAPP laws here and it has put out the a call for evidence on SLAPP.
The government describes SLAPP as follows:
“The term SLAPPs is commonly used to describe activity that aims to discourage public criticism through an improper use of the legal system. SLAPPs have two key features:
• They target acts of public participation. Public participation can include academic research, journalism and whistle-blowing activity concerned with matters of societal importance, such as illicit finance or corruption.
• They aim to prevent information in the public interest from being published. This can be by threatening or bringing proceedings which often feature excessive claims.”
Another word for this phenomenon is the splendid portmanteau ‘lawfare’.
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Now that I have set out a defintion of the term, do have another look at yesterday’s post – which I have now re-titled.
You will see that I aver that although SLAPP is a pejorative and contested term, it is also a useful term as long as you bear its limitations in mind.
In further posts on this blog I am going to look at some recent cases that have been described as SLAPP cases so as to answer the following questions:
1. Is there really a SLAPP problem in the English courts?
2. If so, what is the nature of that problem?
3. And if it is a problem, is it a problem capable of being solved?
I think it is important to ground any consideration of reform in an understanding of actual examples, else one can end up with a mismatch between proposals and problems.
For such a mismatch is what happened, in my view, with the campaign which led to the Defamation Act 2013, where the eventual legislation that was passed would have done little or nothing in respect of the various poster-cases on which the campaign relied.
(With my old Jack of Kent blog I was part of the early part of that campaign for libel reform, though I had and have concerns about the law that was finally enacted.)
Whether there is an actual SLAPP problem and, if so, whether it can be solved is a key issue for our legal system and how that system impacts on public debate.
I would like this blog – with its posts and excellent commenters – to be part of informing the debate on that issue.
I am sorry my post yesterday was running before it was walking – and I hope this further post has put that right.
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• “They aim to prevent information in the public interest from being published. This can be by threatening or bringing proceedings which often feature excessive claims.”
Given the costs that the government have used to frustrate and muzzle the efforts of the Good Law Project they are clearly up to speed on SLAPP!
The cases that go to court are surely just the tip of the iceberg. Much of “reputation management” involves pressure and threats that never need to go to litigation. The burden of proof and the astronomical costs hugely reinforce those threats.
SLAPP suits are indeed a problem in the very litigious US. Even more dangerous are non-disclosure agreements. Obviously, they are a good thing to deal with trade secrets and such proprietary matters. They are misused to prevent whistle-blowing etc. Tr**p even tried them with White House and other employees…. a true no-no.
Very early (1960s) on there was a SLAPP suit by developer against a local newspaper in Greenbelt Maryland. My uncle Albert K. Herling was active in the defence of the paper which lost the original suit but completely prevailed at the US Supreme Court Greenbelt Cooperative Publishing Ass’n, Inc. v. Bresler, 398 U.S. 6, 14 (1970.)
Mr. Justice Stewart addressed the major
point as follows:
The Greenbelt News Review was performing its wholly legitimate function as a
community newspaper when it published full reports of these public debates in its
news columns. If the reports had been truncated or distorted in such a way as to
extract the word “blackmail” from the context in which it was used at the public
meeting, this would be a different case. But the reports were accurate and full.
It
is simply impossible to believe that a reader who reached the word “blackmail” in
either article would not have understood exactly what was meant: it was Bresler’s
public and wholly legal negotiating proposals that were being criticized. No reader
could have thought that either the speakers at the meetings or the newspaper
articles reporting their words were charging Bresler with the commission of a
criminal offense.
. Indeed, the record is completely devoid of evidence that
anyone in the city of Greenbelt or anywhere else thought Bresler had been charged
with a crime.
To permit the infliction of financial liability upon the petitioners for publishing
these two news articles would subvert the most fundamental meaning of a free
press, protected by the First and Fourteenth Amendments. Accordingly, we reverse
the judgment and remand the case to the Court of Appeals of Maryland for further
proceedings not inconsistent with this opinion.50
On July 7 the Maryland Court of Appeals issued an order reversing and
vacating the libel judgment and required Bresler to pay the newspaper the
court costs incurred in defending the action.”
A statue of my uncle was unveiled at the Federal Court House in Greenbelt just before he died in 1997. It now is located in city center Greenbelt.
You have, over the last week or so, highlighted the difficulty of drafting legislation to address a poorly defined term, thus you have been express that the boundaries of what SLAPP means to a litigant (or defendant) is movable and not well defined. The government may have one definition, others vary.
What remains important, as you have said in previous posts, is that there are clear grounds and processes by which vexatious and bullying claims can be thrown out (even penalised) at a very early stage. Your analogy to IP ‘ threats’ should be worthy of further reflection as to relevance, if indeed existing legislation and procedure is not already adequate.
No wish to comment, but you have “prosecution” at the end of the 4th para …
No – thankfully, that was deleted and replaced long before your comment.
I was fortunate enough to find a copy of Catherine Belton’s book, before it was censored, by a SLAPP libel suit..