Protect’s Head of Policy, Andrew Pepper-Parsons, discusses the Government’s ideas for tackling SLAPPs and how they might benefit whistleblowers.
In his foreword to the Government’s Consultation Response, in which new proposals to take action against SLAPPs are outlined, Justice Secretary Dominic Raab highlights the threat they pose to the UK:
‘Strategic Lawsuits Against Public Participation, or SLAPPs, are a growing threat to freedom of speech and a free press – fundamental liberties that are the lifeblood of our democracy.’
Protect campaigned, as part of the UK Anti-SLAPP Coalition, for action to be taken to address the problem of SLAPPs and submitted evidence in response to the Government’s Consultation on the issue. We welcome the Government’s proposed measures to combat SLAPPs as a step in the right direction for whistleblowers.
The growing threat of SLAPPs
SLAPPs are legal actions, typically initiated by the rich and powerful, where ‘the primary objective is to harass, intimidate and financially and psychologically exhaust one’s opponent via improper means’ (Department for Justice). Much of the power of SLAPPs is in the threat of action and they are often never designed to get to court; rather, they aim to bog down their targets in expensive, time-consuming litigation and ultimately censor criticism.
Whistleblowers, journalists, activists, authors and other public watchdogs have all been SLAPP targets. SLAPPs are essentially a form of reputation management, used to threaten critics into silence. They prevent public scrutiny of suspected wrongdoing or illegal activity, they suppress free speech and they are a barrier to accountability. They therefore pose a fundamental risk to democracy.
The scale of the problem can be seen in the following research:
- In research undertaken by the Coalition Against SLAPPs in Europe (“CASE”) and the Business and Human Rights Resource Centre (“BHRRC”), 570 cases studied by the former and 355 cases studied by the latter resulted in a clear conclusion that SLAPPs are on the rise.
- A November 2020 report by the Foreign Policy Centre (“FPC”), which surveyed 63 investigative journalists in 41 countries working to uncover financial crime and corruption, found that nearly three quarters of all defendants had received legal threats as a result of information they had published. The UK was ‘by far the most frequent country of origin for legal threats’, with almost as many originating from here (31%) as from the USA (11%) and EU countries (24%) combined.
The Government have put forward two main proposals: ‘strike out powers’ and a ‘cost protection scheme’, both of which may benefit whistleblowers, both directly, and indirectly, through the protection they bring to journalists. If journalists have a better defence against SLAPPs, they are more likely to publish stories about suspected wrongdoing, misconduct and the like – the sort of stories with which a whistleblower might go to the media, and the sort of stories which might lead a powerful individual to threaten a SLAPP. Whistleblowing does not work without a robust media able to expose wrongdoing, an important last resort if both employers and regulators have failed to deal with concerns.
Strike out powers
The Government propose to formalise and strengthen the ability for courts to strike out (dismiss) SLAPPs at an early stage. Most SLAPPs are about grinding whistleblowers, journalists etc. down, not winning in court. So, they need to be nipped in the bud as early as possible.
The Government intend to introduce a three-part test to identify SLAPPs for strike out:
- Definition of public interest: courts will assess if the case is against activity that is in the public interest, such as investigating financial misconduct by a company or an individual.
- Definition of SLAPP: courts will consider whether there is evidence of abuse of process, by examining a non-exhaustive list of factors that are common hallmarks of SLAPPs, for example: sending a very large number of highly aggressive letters on a trivial matter; making unnecessary disclosure requests or using other legal tools designed to rack up costs and waste time, and attempting to ‘forum shop’ to find a less appropriate jurisdiction. The Government says that any list would be illustrative rather than prescriptive, which is welcome as flexibility would enable courts to better respond to new SLAPP tactics.
- Merit test: Courts will consider whether the case has a realistic prospect of success.
What emerges from this Consultation Response as the proposed law that Parliament will debate is going to be key. Of various potential issues, let’s look at defining the public interest, for example, as required by stage one of the test. It is worth noting that the Government does not plan to define public interest, meaning that courts would be left to do so.
On the one hand, creating a public interest test with no detail for the courts to apply may create uncertainty, which SLAPP litigants may exploit. On the other hand, the courts are well placed to assess whether the public interest is engaged and have a track record of doing so in different of areas of law. A test that is not too prescriptive will enable courts to respond more easily to new threats and adapt to changing approaches to the public interest. Ideally, any public interest test should not be overly restrictive by, for example, narrowly focusing on journalists and ignoring whistleblowers, but should still provide some level of legal certainty.
Cost Protection Scheme
The cost of fighting SLAPPs is a major part of the chilling effect they can have on both whistleblowing and media reporting of wrongdoing. The Government has proposed a cap on costs to ‘enable meritless cases to be properly defended’, which may assist whistleblowers who face legal threats from their well-resourced employer/ex-employer and do not have the money to access legal advice to defend themselves. On our Advice Line, Protect have advised multiple whistleblowers who have been the targets of SLAPPs by employers/ex-employers, geared at preventing them from bringing a whistleblowing claim, or from escalating concerns to regulators or the media.
With a new Prime Minister being elected in September, a new Cabinet will follow and it is unclear whether SLAPPs will be a priority for the Government and whether these proposals will be turned into law. A grim reality is that the continued war in Ukraine could keep SLAPPs at the forefront of government thinking. As Raab acknowledges in his foreword, many SLAPPs are pushed by Russian oligarchies and corporations which fund the war. Whatever the political landscape, it will be vital for Protect and the UK Anti-SLAPP coalition to carry on campaigning for action to be taken. These proposals are a good first step but the devil will be in the legislative detail.