Wealthy individuals and companies will be prevented from making spurious legal claims to gag journalists and silence critics through a landmark ‘anti-Slapp’ bill that gained government support this week.
The Strategic Litigation Against Public Participation Bill, a Private Members’ Bill put forward by Wayne David MP, had its second reading in the House of Commons this week, and has garnered cross-party support. According to the government, the legislation – which will only apply to England and Wales – will allow “independent judges to dismiss such claims before they go to trial and protect defendants from paying exorbitant costs”.
Strategic Lawsuits Against Public Participation – or SLAPPs – represent a heavy-handed form of litigation used by wealthy individuals or companies to harass, intimidate and deter journalists from reporting on their wrongdoing, thereby discouraging scrutiny of matters in the public interest.
In recent years, Slapps have become notorious after a series of high-profile legal actions against journalists in the UK courts designed to stifle free speech and suppress legitimate reporting.
Data gathered in 2022 by the Coalition Against Slapps in Europe revealed that the UK is the number one jurisdiction for cross-border Slapps. The very high cost of legal action in the UK makes it a particularly effective jurisdiction for Slapp cases – or ‘lawfare’ – where the aim is simply to threaten critics into shutting down debate, rather than actually winning a case. As the Times put it in a strong leader back in 2022, “the current system is stacked in favour of those with the deepest pockets, allowing the super-rich to bully and intimidate journalists and media organisations into submission”.
Mining company ENRC, for instance, launched legal action against journalist Tom Burgis over his investigation into the company’s business dealings. The defence cost nearly £340,000, and had a high court judge not dismissed the case prior to trial, total costs would have exceeded £1 million.
Similarly, Washington Post journalist Catherine Belton fell victim to a “legal pile-on” by four oligarchs, including Roman Abramovich, and a Russian state oil company over her book, Putin’s People. Despite winning the legal case, Belton was left facing legal costs of £1.5 million.
In one of the most notorious cases to date, Yevgeny Prigozhin, the now deceased head of Russian mercenary organisation the Wagner Group, sued Elliot Higgins, the founder of website Bellingcat, which published reports uncovering Wagner’s operations in Africa and the Middle East, and revealed Prigozhin’s links to the Kremlin. According to Higgins’s lawyers the fact that the claim was brought against Higgins personally, rather than Bellingcat, is prima facie evidence it was a Slapp. The case was abandoned only after Russia invaded Ukraine, leaving Higgins £70,000 out of pocket and unable to claim damages.
Prior to giving its backing to Wayne David’s Private Members’ Bill, the government had already committed to a crackdown on Slapps. In 2022, the then Justice Secretary, Dominic Raab, unveiled reforms that he said would “uphold freedom of speech, end the abuse of our justice system, and defend those who bravely shine a light on corruption”.
The reforms took the form of amendments to the Economic Crime and Corporate Transparency Act 2023, which create an early dismissal mechanism in the courts based on two tests: whether a case is a Slapp, and whether the claim has a reasonable chance of being successful.
However, campaigners described this as only “a partial victory” given that the new law is limited to information in the public interest related to economic crime, which accounts for 70% of UK Slapps but fails to protect public interest speech more generally.
A group of publishers and broadcasters including the editors at the Financial Times, Guardian, Telegraph and Times, as well as the chief executive of ITN, then wrote to the present justice secretary, Alex Chalk, arguing that the “next step must be a standalone anti-Slapp bill to extend protections to everyone who speaks out in the public interest”.
According to the government, The Strategic Litigation Against Public Participation Bill will update the measures in the Economic Crime and Corporate Transparency 2023 Act to cover a broader scope – blocking Slapps across all types of litigation, including sexual harassment, not just economic crime.
The legislation will create a new dismissal mechanism to stop Slapps claims as early as possible. Claimants will be required to prove they are likely to succeed before it goes to trial, allowing Slapps to be rapidly thrown out by judges and making them less effective as a tool with which to threaten free speech advocates.
A costs protection scheme will also be created to protect defendants, like journalists, from claimants, like oligarchs, who deliberately run up exorbitant legal costs. Ordinarily the party which loses the case must pay all the costs, but new rules would mean that the defendant will not have to pay the claimant’s costs, unless directed otherwise by a judge.
Culture Secretary Lucy Frazer said the government is committed to “making it harder for powerful people to stop the publication of investigative journalism through unscrupulous lawsuits and this legislation will enhance that further, ensuring that there are comprehensive powers within UK law to protect journalists from all forms of Slapps”.
