July 20, 2022
The Government has this week published its response (the “Response”) to the Call for Evidence on SLAPPs published on 17 March 2022. This Call for Evidence invited evidence about the use of SLAPPs in this jurisdiction and sought opinions on possible reforms to address perceived issues arising from this field. A total of 120 responses were received, providing varying responses to the questions asked. The Response confirmed that robust evidence of SLAPPs behaviour at all stages of publication had been provided by numerous respondents in response to the Call for Evidence.
The Response discussed the impact such lawsuits can have on defendants, often causing significant stress and anxiety and frequently having detrimental financial and professional ramifications.
To prevent such ramifications, and to ensure that freedom of speech and robust investigative reporting is not stifled by SLAPP actions, the Government has decided to propose several legislative reforms. The Government first noted the difficulty of accurately defining such lawsuits, ultimately proposing a three-part test to identify a SLAPP claim: that it has some features of an abuse of process, which would be set out in an illustrative non-exhaustive list of factors that are common hallmarks of SLAPAPs litigation, for example (but not limited to):
- sending a very large number of highly aggressive letters on a trivial matter;
- satisfying that a case relates to a public interest issue, for example (but not limited to) investigating financial misconduct by a company or individual;
- that it has some features of an abuse of process, which would be set out in an illustrative non-exhaustive list of factors that are common hallmarks of SLAPAPs litigation, for example (but not limited to) sending a very large number of highly aggressive letters on a trivial matter; and
- has insufficient evidence of merit to warrant further judicial consideration, for example where a case has no realistic prospect of success.
To combat these lawsuits, the Government proposes a new statutory early dismissal process to strike out this type of litigation at an early stage:
- A definition of public interest;
- A set of criteria for the courts to determine whether a case should be classified as a SLAPP based on one or more of the common characteristics of such actions; and
- A merit test.
The Government also intends to pursue other reforms which do not require primary legislation, but which would use the statutory definition and criteria as the basis for SLAPPs to be made subject to a special regime. The focus of these reforms will be a formal costs protection scheme. This reform is proposed to the evidence provided by respondents which detailed the chilling effect these (frequently extremely costly) lawsuits can have, particularly on freelance journalists who do not have a newspaper or publisher assisting with costs. To that end, the Government has proposed a costs protection scheme along the lines of the Environmental Costs Protection Regime, which places a £5,000 cap on a defendant’s costs. The Response states that further consideration will be given to whether any caps or protections should be introduced for claimants.
The Government also confirmed that it will consider implementing punitive damages or other financial penalties for claimants who bring claims of this nature.
The Response discusses several key areas of defamation law (whilst acknowledging that SLAPPs also occur in other areas, such as data protection and privacy law) and confirms that the Government will monitor the need for a wider reform of defamation law generally, but that current reforms will concentrate on SLAPPs only. Reform to areas such as the serious harm requirement, the public interest defence, a potential new statutory right to public participation, an actual malice threshold and other procedural reforms were rejected, with the caveat that the Government will keep these issues under review going forward.
Caroline Kean at Wiggin has commented: “We are pleased that the Government has agreed that SLAPPs are a very real threat to free speech in this country and has confirmed that the intention is to introduce an early dismissal process via primary legislation. We have been campaigning for judges to have the power to dismiss SLAPP cases at an equivalent of the current early determination of meaning hearing, which we believe will be the quickest and most cost-effective method of disposing of these abusive cases. We look forward to receiving further details of the Government’s proposals.”