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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