SLAPPS reforms are too timid

The UK government this week started to deliver on its promise to rein in SLAPPS (Strategic Lawsuits Against Public Participation) but its proposals do not go far enough.

SLAPPS are a major challenge for the media. They are used to bully journalists and publishers and deter genuine investigative journalism. They are a worldwide phenomenon and are often accompanied by serious threats to the safety of journalists. The people who use SLAPPS have few scruples.

The scope and scale of SLAPPS varies enormously but usually feature a barrage of flimsy claims for defamation or breach of privacy from wealthy, powerful individuals seeking to prevent investigation of potential wrongdoing. They were especially popular among Russian oligarchs but by no means limited to them.

Now, the UK government has announced that the Economic Crime and Corporate Transparency Bill, currently going through Parliament, will be amended to provide judges with greater powers to dismiss lawsuits relating to economic crime that are designed to evade scrutiny and stifle freedom of speech.

The limitation to economic crime is disappointing. The government says around 70% of SLAPPS are related to economic crime and corruption and will be caught by the new rules. That still leaves many important areas of investigative journalism exposed, especially where the issues are reputational and not economic.

For instance, the initial exposure of Harvey Weinstein as a serial sexual predator was subject to a barrage of legal threats in an attempt to close down the investigation. That was a reputational issue, not an economic one.

The proposals have other weaknesses.

The amendments to the Bill propose allowing judges to apply a two-part test. First to determine whether a case meets the definition of an economic crime and, second, whether it has a reasonable chance of success. The scope for protracted and expensive arguments about whether a particular case falls within the definition of economic crime is especially worrying. It is just the sort of uncertainty that law firms love.

There is also the suggestion that a case must get as far as the courts before any action to curtail a SLAPP can be taken. The damage is often done long before a case gets near a court: that is the purpose of most SLAPPS.

The users of SLAPPS are frequently making claims that could never realistically be pursued but have the sole purpose of deterring investigation. They are taking advantage of the fact that investigative journalists often do not have access to the sort of very expensive legal advice needed to defend these claims, so they give up at the first hint of trouble. It is unclear how the government proposals will stop this happening, although there is mention of introducing limits on costs.

Campaigners for free speech, the media and many legal professional bodies have advocated a much broader three-fold test to be applied: 

• The investigation that has provoked the SLAPP has to be in the public interest.

• There must be some “abuse of process”.

• The complaint must be of insufficient merit to require further judicial investigation.

The other weakness is that the proposals only apply in England and Wales. There is nothing in the pipeline for Scotland and Northern Ireland.

The UK government has at least moved faster than the European Union which is still deliberating on how best to clamp down on SLAPPS. The longer the EU takes, the greater the scope for the unscrupulous to indulge in a bit of forum shopping and find a jurisdiction that allows them to bully and harass.

We need more comprehensive and speedier action to end this menace.