Strategic Litigation against Public Participation (“SLAPP”) is a tool used by wealthy individuals to intimidate and financially burden those who seek to expose their wrongdoing, such as threatening exorbitant legal costs in suits brought against journalists falsely claiming defamation or invasion of privacy. For some time now, journalists and UK Government have been discussing the need for a UK anti-SLAPP law with the aim of ensuring journalists, public watchdogs, whistleblowers and activists can continue to publish information that is in the public interest without harassment.

In December 2023, the Strategic Litigation Against Public Participation Bill was introduced to Parliament as a private members’ bill. It had its second reading in the House of Commons on 23 February 2023. It provides that the rules of civil court procedure in England and Wales must include provisions ensuring that a court claim can be struck out before trial where the court determines that the claim is a SLAPP claim (see below), and the claimant has failed to show that it is more likely than not that the claim would succeed at trial. The civil court rules must also include a provision that a court may not order the defendant to pay the claimant’s costs in respect of a SLAPP claim, unless the defendant’s misconduct justifies such an order. Presumably, this applies where a SLAPP claim is allowed to proceed.

A claim is a SLAPP claim if (1) 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, (2) the information that is or would be disclosed by the exercise of that right relates to a matter of public interest; and (3) 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, beyond that ordinarily encountered in the course of properly conducted litigation.

Matters of public interest include unlawful behaviour, false statements, public health, safety, the climate or the environment or a public body investigation or review. In determining whether the condition at paragraph 3 above is satisfied, the court may take into account whether the behaviour is a disproportionate reaction to the matters complained of in the claim, including whether the costs incurred by the claimant are out of proportion to the remedy sought; whether the defendant has access to fewer resources with which to defend the claim than another person against whom the claimant could have brought (but did not bring) proceedings in relation to the matters complained of in the claim; any relevant failure, or anticipated failure, by the claimant to comply with a pre-action protocol, rule of court or practice direction, such as in respect of choice of jurisdiction, dilatory strategies or the nature and amount of material sought on disclosure.

This proposal closely mirrors the language used in the Economic Crime and Corporate Transparency Act 2023 which addresses SLAPPs relating to economic crime, save that the new bill widens the definition of a SLAPP claim to claims that relate to the exercise of the right to freedom of speech in respect of any matter of public interest and not just to the public interest in combatting economic crime. In October 2023, the Government announced plans to address non-economic crime SLAPPs through non-legislative measures (previously reported by Wiggin). Presumably, this new bill has been proposed out of a concern that these proposals from Government, and Economic Crime and Corporate Transparency Act 2023, do not go far enough to protect journalists against SLAPPs.

The date for the next stage of the bill, the Committee stage, has not yet been announced.

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