Wherever there is someone raising their voice in the public interest, there’s a risk of strategic lawsuits against public participation (SLAPPs) from powerful individuals. SLAPPS are a tactic typically used by the wealthy elite to intimidate critics into silence and conversely tend to lack legal merit. They rarely make it to court – but that’s not the motivation behind those using them. There’s a monumental cost financially as well as in time and energy, and especially in cases where its an individual (rather than an organisation) that has to pay for their own legal defence. As a result SLAPPs threaten the right to speak out and speak up – and are a significant threat to democracy.
SLAPPs don’t only prevent free speech, but also attempt to shield wrongdoing from proper scrutiny and whistleblowers are in a particularly vulnerable situation. Not only can SLAPPs restrict the ability of journalists to report on information shared by whistleblowers, but whistleblowers can also face SLAPPs themselves, threatening them into silence. This is catastrophic for accountability. The UK is a leading source of SLAPPs, with almost as many cases as the US and EU put together.
This is why the newly introduced Economic Crime and Corporate Transparency Act (ECCT) has been highly anticipated. It includes the first anti-SLAPPs legislation in the UK and gives powers to judges to strike out SLAPP claims involving economic crime.
The ECCT has also created the criminal offence of ‘failure to prevent fraud’ for large organisations, and updated the law so that businesses can be found criminally liable for fraud carried out by senior management.
How does this affect whistleblowers?
The ECCT is likely to have an impact on whistleblowers working within the financial sector. Whistleblowers, like journalists and activists, are typically at a higher risk of receiving SLAPPs due to their role as public watchdogs. Whistleblowers are the eyes and ears of organisations, so are often in the best position to detect and prevent economic crime. As such, the anti-SLAPPs measures introduced in ECCT should encourage whistleblowers to speak up when they witness wrongdoing, without fear of being silenced.
The ECCT may mitigate the risk of victimisation for workers who blow the whistle. Its new measures should encourage accountability and scrutiny concerning economic wrongdoing, due to the risk of organisations being found vicariously liable for economic crime. As the Director of the Serious Fraud Office, Nick Ephgrave explains, “…big businesses can no longer turn a blind eye to fraud.”
As part of the UK Anti-SLAPP coalition, Protect welcomes the ECCT. It’s a good first step but doesn’t go far enough and there needs to be a dedicated law. Firstly, the Act is limited to only preventing SLAPPs regarding economic crime. This gives people in the financial sphere more protection that those in any other industry. Protection against SLAPPs needs to cover all sectors and concerns.
Whistleblowers are often in a vulnerable position to begin with – you can lose your job, reputation, and claiming for damages at the employment tribunal is a long and complex process. Adding the threat of SLAPPs to a whistleblower’s journey is an unnecessary obstacle. Whistleblowers don’t have easy access to legal advice, or the backing of their employer like journalists may have. In cases where SLAPPs take the form of defamation or libel claims, they often require specialist and expensive lawyers. Because of this, Protect would also like to see whistleblowers who have made protected disclosures under the Public Interest Disclosure Act 1998 have immunity from civil litigation and a public interest defence for criminal proceedings brought against them due to raising concerns. This would ensure whistleblowers are protected against all retaliatory litigation, as SLAPPs aren’t limited to civil defamation claims.
The ECCT is a stepping stone, not the destination for anti-SLAPPs law, and Protect continues to campaign for SLAPPs protection.
If you are a whistleblower who has been threatened with litigation due to raising concerns, please get in touch with our Advice Line.