More than a SLAPP on the wrist: are the days of using legal teams to silence critics numbered?

Awareness of strategic lawsuits to silence critics is increasing, as are government efforts to prevent intimidatory legal tactics from stifling work in the public interest. What might this mean for businesses and their legal teams?

The concept of ‘lawfare’ came to public knowledge following the Russian invasion of Ukraine. Sanctioned Russian oligarchs faced unprecedented levels of interest in, and scrutiny of, the sources of their wealth. In response, many took to the English courts to discourage reporters and the media from delving too deeply into their affairs.

One such incident, exposed by openDemocracy earlier this year, caused heated debate in the House of Commons. According to leaked documents, the Government had allowed Yevgeny Prigozhin, a Russian founder of a mercenary army, to circumvent sanctions and pursue an unfounded claim against a British journalist. The claim has since been dropped, but it left Eliot Higgins, the founder of investigative group Bellingcat, with £70,000 in costs.

“The Government appears to have granted a waiver for a warlord that enabled him to launch a legal attack on a British journalist,” said shadow foreign secretary David Lammy, addressing Treasury minister James Cartlidge in a session in January. “If the now prime minister’s Treasury had any hand in alleviating pressure on Prigozhin, I’m sure every member across this house would agree that this would be absolutely unconscionable.”

Prigozhin’s case is a prime example of a SLAPP – a strategic lawsuit against public participation. It is a weapon frequently used by the rich and powerful to silence critics and prevent the publication of unfavourable information. Its exploitation by Russian oligarchs like Prigozhin, however, has triggered intense debate over its place in society, particularly those in which free speech, investigative journalism, and democracy are most valued.

What is a SLAPP?

SLAPPs typically manifest as claims relating to defamation, invasion of privacy, and breach of confidence. They are often characterised by multiple, wide-ranging claims, aggressive use of communications, and exaggerated costs.

According to the Government’s call to evidence in March 2022, SLAPPs are “a growing threat to freedom of speech and free press.” This is because they frequently target journalists, campaigners, researchers, and whistle-blowers, often in response to fact-checking or a ‘right to reply’.

Essentially, they use the threat of high costs, delays, and going to court to intimidate the recipient into dropping the offending content, whether that is a news story, a report, or academic research. Oftentimes, this is achieved before a claim sets foot in a courtroom. Such is the intimidatory power of a SLAPP.

Why are SLAPPs a problem for the media?

SLAPPs are nothing new and have caused the media numerous headaches over the years. Defamation claims and super-injunctions, for example, are often used by celebrities and high net-worth individuals to prevent the publication of sensitive news stories and reports.

For the media, this tactic is exploited far too often to prevent legitimate reporting, as in the case of former Topshop owner Philip Green, who successfully obtained a temporary injunction that banned the media from naming him as the primary suspect in allegations of sexual harassment, racist abuse, and bullying. Green was later named – not by the media – but by Labour peer Lord Hain under parliamentary privilege.

Journalists and members of the British media were vocal in their criticism during the Government’s call to evidence, with many highlighting personal experiences of SLAPPs and the effect this had, both personally and professionally. For cash-strapped publication houses and freelancers, some individuals and organisations were deemed “no-go zones” because of their trigger-happy approach to lawsuits. According to Michelle Stanistreet, general secretary of the National Union of Journalists “abuse of the law by the sly and mighty” is a “scourge which must be eradicated.”

Are defamation claims and SLAPPs the same?

Not everyone agreed with the media’s approach to SLAPPs. Many legal professionals – particularly those representing high-profile clients – found the use of the term SLAPP troublesome, with some even questioning whether it actually exists.

Citing the delicate balance between protecting freedom of speech and protecting one’s reputation, certain respondents expressed concern that “the concept of SLAPPs was being used by the media to evade accountability and, in some instances, was even being used to prevent those with legitimate interests defending their reputations,” according to the Government’s response.

Many also pointed out that procedural and legislative mechanisms were already in place to deter, or throw out, spurious claims, as well as professional standards for ensuring a case had merits before taking it on. Those going against such expectations, according to some respondents, were usually in the minority. As such, most claims that made it to court usually had enough merit to do so.

How is the Government responding?

Despite its detractors, the concept of SLAPPs is now being reviewed by the Government, which believes “the case is made for reforms which address the particular challenges of SLAPPs.”

The first challenge, however, is developing a test that can adequately sort the legitimate claims from the SLAPPs. As the Government recognised, SLAPPs are frequently disguised as litigation intended to resolve disputes and vindicate reputations, when their actual intention is to bully and harass into silence. Such a test is already in the works.

“We intend to introduce a new statutory early dismissal process to strike out SLAPPs and avoid lengthy SLAPP litigation,” the Government explains. “This measure will be made up of three parts: a definition of public interest; a set of criteria for the courts to determine whether a case should be classified as a SLAPP based on one or more of the common characteristics of such actions; [and] a merit test.”

Although no further information has yet been given, the Solicitors Regulation Authority (SRA) has already released a guidance note regarding the three-part test. Linking the proposed anti-SLAPP measures to existing codes of conduct, the SRA has made clear its expectations regarding the fair treatment of clients and other parties, highlighting that the interests of clients cannot outweigh those of the public.

“We expect you to be able to identify proposed courses of action (including pre-action) that could be defined as SLAPPs, or are otherwise abusive, and decline to act in this way,” it says. “We expect you to advise clients against pursuing a course which amounts to abusive conduct, including making any threats in correspondence which are unjustified or illegal.”

How should businesses respond to anti-SLAPP legislation?

For businesses and their legal teams, the information and guidance issued by both the Government and the SRA should provide an impetus to review crisis management plans, particularly those involving reputational risk. Strategies that have historically relied too heavily on litigation must now prioritise proactive measures that prioritise the prevention and mitigation of potential issues.

Developing positive relationships with the media, for example, is a particularly effective way to ensure any published information is fair and accurate. Although cooperating with a journalist will not prevent the publication of unfavourable information that is in the public interest, it can help to ensure a business can input its side of the story, as well as any actions it is taking to manage the situation.

It is highly likely that anti-SLAPPs legislation will be introduced later this year. With legal bodies such as the SRA already making government proposals a mandatory part of its code of conduct, however, it is important that businesses and their legal teams act now to review their claims and update their risk management strategies. The consequences for not doing so could soon be far more than a slap on the wrist.