This article first appeared on the Bureau of Investigative Journalism and has been republished with permission from the author.
Journalists and media outlets have long been accustomed to legal threats from people who have taken issue with their reporting. But today it is not only reporters who can find themselves in the crosshairs of powerful people seeking to defend their reputations and privacy. Social media means anyone can now publish unflattering information to a potentially huge audience at the touch of a button.
There are, of course, times when a person has fair reason to complain about what’s been put out there about them. But that is not always the case. Even the most accurate, balanced and rigorous reporting can result in a libel lawsuit. These sort of legal actions – which have no substance and are intended primarily to intimidate – are known as strategic lawsuits against public participation, or SLAPPs.
Also included in this bracket are the legal threats that never actually result in lawsuits – so it is hard to know how widespread SLAPPS really are.
SLAPPS are a tactic used by the wealthy to suppress negative publicity. And they are an increasingly common tool in the playbook of the corrupt.
What should I do if I receive a legal threat?
Take it from us, legal threats are actually quite common when you are speaking up to power. So, if you do get one, firstly, do not panic. This is not legal advice, so please make sure you speak to a lawyer for that. These are just pointers based on our experience.
- Read more: TBIJ beats two-year SLAPP lawsuit
If you are a journalist, the first thing you need to do is speak to your editor – ignoring legal letters is rarely a good move. Generally, even if you are a small independent newsroom, you are going to want to consult a lawyer. Spending a few hundred pounds to make sure you send a good response is wise if you want to avoid going to court. The costs of a trial could spiral into the hundreds of thousands.
If you are not a journalist, seeking a lawyer’s advice is still highly recommended.
How do I tell a fair complaint from a SLAPP?
A letter sent in good faith will likely provide a clear and specific explanation of why your reporting (or social media post, for instance) is incorrect. Under the Defamation Act 2013, you may be breaking the law if you publish false information that could cause harm to somebody’s reputation or, in the case of a business, cause serious financial loss. Defences are available and your lawyer will be able to advise you of these.
- Read more: Silencers of the truth: what are SLAPPS?
It may be the case that its points are valid and it contains compelling evidence of something being wrong with what you are saying. In this case and if you are being told before you publish, you have a chance to do more research and correct what you’ve written. If a letter is telling you this after publication, you may need to correct your piece and issue an apology.
On the other hand, the letter may be from someone who knows the information you have published is correct, but who wants to scare you into retracting it or toning it down: it is a SLAPP.
This sort of correspondence often uses a lot of aggressive legal language designed to confuse and intimidate you. So focus on the meat of it. Look carefully at what they are taking issue with. Are you confident what you have written is true and accurate? Do you have evidence to prove it? If it is an opinion, is it grounded in facts?
You also need to think about whether you have breached privacy, data or confidentiality laws. It is sometimes okay to do so, but only if you are revealing something the public has a right to know.
Look at what the letter is asking you to do. If it is asking you to correct one fact, this might be relatively easy so long as it is not central to what you are saying. A demand that you abandon or take down the whole article, though, could be a red flag; it is unlikely (although not impossible) the entire piece is incorrect.
Think about the context in which the letter was sent. Was it in response to you approaching them with the allegations you planned on publishing, and with questions for them to answer? If those questions have been ignored and instead the letter serves only to threaten you, this could be an indication the person does not have evidence to prove you wrong. You may need to write back, asking them for more information. If they still cannot back up their claims, this could be a red flag.
Does the legal letter say that proceedings will be launched if you do not take a certain action? Or are they just saying you have misunderstood something, or failed to properly investigate? If somebody says they plan to launch proceedings, this is more serious.
Letters that are labelled “strictly private and confidential” (or something along those lines) are also a common feature of SLAPPs – and are in fact flagged by the legal regulator as a possible marker of abusive litigation. Do not be misled by this: you are always allowed to seek legal advice.
Who does the burden of proof lie with?
In a libel case, the burden of proof is on you, the defendant, to prove what you say is true rather than the claimant to prove it is false. That is the opposite of criminal law, which works on the basis that a person is innocent until proven guilty.
In October 2023, the UK government passed a law called the Economic Crime and Corporate Transparency Act, which included provisions to protect people against SLAPPs. That law now means a legal claim must be shown to have a reasonable chance of success before it proceeds to trial (as long as the allegations in question relate to economic crime). This protection is often referred to as an “early dismissal mechanism” and is useful to know, since it helps balance the scales.
Politicians have promised they will introduce further measures to protect journalists and others making public allegations, but they have yet to do so.
Guest blog: Lucy Nash, The Bureau Of Investigative Journalism.