New UK measures to address SLAPPs: a panacea or a missed opportunity?

The Government has announced that defendants will be able to apply to throw out baseless claims that seek to prevent the publication of information where it is in the public interest to do so.  This has been characterised by the government as an "early dismissal mechanism" comprising two tests: first, whether the claim meets the definition of a "SLAPP" and, second, whether the claim has a reasonable chance of success.   The exact wording of the mechanism has not yet been published, however in a press release the Government has stated that a claim will be a SLAPP for the purpose of this legislation if:

• the claimant's behaviour in relation to the matters complained of in the claim has, or is intended to have, the effect of restraining the defendant's exercise of the right to freedom of speech;
  
  
• the information that is or would be disclosed by the exercise of that right has to do with economic crime;
  
  
• that disclosure is or would be made for a purpose related to the public interest in combating economic crime; and
  
  
• any of the behaviour of the claimant in relation to the matters complained of in the claim is intended to cause the defendant harassment, alarm or distress, expense, or any other harm or inconvenience which is beyond that ordinarily encountered in the course of properly conducted litigation.

Until now, the term "SLAPP", while used extensively by the media following several recent high-profile defamation claims brought against journalists, has not been defined in legislation.  The new measures will, for the first time, do this (albeit limited to the context of economic crime).     

There are several points to note:

• It is not immediately clear how this test will work in practice or how it will differ from existing measures to deter unmeritorious claims being brought. For example, the Government has stated that the second stage of the new test will be whether the claim has a reasonable chance of success—which appears to be a very similar test to the one that already exists if a claimant wishes to seek to strike out a claim under CPR r 3.4(a) ("…the statement of case discloses no reasonable grounds for bringing … the claim").  Similarly, r 3.4(b) already provides for a strike out should a claim be brought for unmeritorious reasons ("…the statement of case is an abuse of the court's process…").  The press release suggests that the distinction might be that it is for the claimant to prove that the claim has a reasonable chance of success (if a claim falls within the definition of a SLAPP) rather than for the defendant to prove otherwise. Once the precise wording of the test is published, we will be able to scrutinise this aspect in more detail. 
  
  
• Superficially, it appears that the definition of a SLAPP could offer several avenues for a claimant to argue that their claim does not meet the definition, whether legitimately or otherwise. For example, it will be open to a claimant to argue that (i) the claim does not (or does not intend) to have the effect of restraining free speech, (ii) the information in issue does not relate to an economic crime, (iii) the claimant does not intend to cause the defendant harassment, alarm, distress, expense or inconvenience or (iv) that the harassment, alarm, distress, expense or inconvenience is not beyond what is normally encountered in the course of litigation.  Given this, the effectiveness of this approach will likely depend on the way in which judges choose to interpret the provision.
  
  
• Several of the most high-profile SLAPPs in recent years (e.g. the Wagner group defamation claim brought against Bellingcat founder Eliot Higgins) do not have an obvious link to an economic crime. It is not clear whether the Government has chosen to only address SLAPPs with a link to financial crime, or whether the Government will seek to introduce a separate measure for non-financial crime SLAPPs in the future.

As noted above, SLAPPs (which are, in practice, typically defamation claims brought against journalists) can already be addressed by the Courts via a strike out applications (as was the case in the recent decision of Amersi v Leslie, where a defamation claim brought by a Conservative Party donor against a former Conservative Party MP was struck out pursuant to CPR r 3.4(a) on the grounds that the particulars of claim did not disclose a proper cause of action).  Accordingly, with similar mechanisms already in place to address SLAPPs, it will be interesting to see how these new rules move the dial in practice. 

As we have noted in recent publications on SLAPPs (see our most recent, here), the SRA has issued a warning on the use of SLAPPs, particularly in the context of pre-action correspondence.  The SRA's guidance on conduct in disputes from March 2022 also gives guidance to solicitors putting forward meritless claims which fail to meet wider public interest principles.  The Government's recent proposal introduces a new procedural remedy for a recipient of a SLAPP, whereas the SRA's measures are, ultimately, "soft" measures in that they do not necessarily attract a sanction should a solicitor breach them.  Accordingly, even though the newly announced measures are limited to economic crime, they are still welcome in providing practical remedies.

In addition to announcing these new measures in the Economic Crime and Corporate Transparency Bill, the Government has announced a "wider package of reforms", which will also look to address the high costs associated with SLAPPs.  The details have not yet been released.  Separately, there have been recent proposals in the House of Lords to introduce to the Economic Crime and Corporate Transparency Bill a criminal offence for a person to threaten civil litigation for the purpose of suppressing public participation, with a guilty person subject to a term of imprisonment of up to two years.  It is not clear whether this proposal will obtain Government support.

Unsurprisingly, while there has been some support given to the bill from campaigners, there is disappointment that it does not cover non-economic crimes, and has been characterised as a "stepping stone rather than a final destination" by the Index on Censorship. In the press release that accompanied the Government's announcement of these new measures, Ministers made bullish statements about the impact of the proposals. By way of an example the Lord Chancellor and Justice Secretary, Alex Chalk KC, stated that the measures "will protect the values of freedom of speech that underpin our democracy and help better protect reporters who are shining a light on their crimes", while Security Minister Tom Tugendhat said "… corrupt elites have abused our legal system to evade scrutiny and silence their critics … [t]hese new measures are a victory for truth and justice … [t]hey will help expose wrongdoing and bring an end to spurious lawsuits from those who seek to suppress our freedom of speech".  Whether the measures ultimately live up to these bold statements remains to be seen.