21st March 2022
SLAPP – strategic litigation against public participation – is a new-ish name for an age-old problem.
Here is L. Ron Hubbard in 1955 advocating law suits against those who were using Scientology materials without authorisation:
“The purpose of the suit is to harass and discourage rather than to win. The law can be used very easily to harass, and enough harassment on somebody who is simply on the thin edge anyway, well knowing that he is not authorized, will generally be sufficient to cause his professional decease. If possible, of course, ruin him utterly”
(The Scientologist: a Manual on the Dissemination of Material, page 157)
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SLAPP is, of course, a pejorative term (as this blog recently averred) – but, for want of a better term, is the best name we have got for a certain thing.
The problem with SLAPP being a pejorative term is that, just as one person’s terrorist can be another person’s freedom fighter, one person’s SLAPP case is another person’s legitimate attempt to defend their reputation and/or privacy rights.
Few if any claimants will say expressly that their case is a SLAPP case – not many are as brazen as L. Ron Hubbard.
And it is possible that what one side considers to be a SLAPP case will genuinely not be considered to be a SLAPP case by the other side.
That said, SLAPP as a term has two useful qualities.
First, it is not limited to any one area of law – for example defamation – and so it implicitly recognises that various areas of law can be (mis)used – not only defamation but also misuse of private information, data protection, confidentiality, intellectual property rights, and so on.
Second, it indicates that certain decisions are being made strategically – or at least, tactically (though TLASS is a less handy acronym) – about the purpose to which law is being used.
Another problem, however, with SLAPP as a term is that its American origins may mislead people into thinking all anti-SLAPP legislation is the same.
In fact, much of what constitutes anti-SLAPP reform in the United States is already part of English law, including the ready availability of costs sanctions and early opportunities for meritless cases to be struck out.
There is no single anti-SLAPP reform that fits all jurisdictions.
So as long as the strengths and weaknesses of SLAPP as a term are borne in mind, it is the best description we have got of a certain thing.
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But – what is that thing?
Well.
One thing it usually is not about is the law or procedural rules being broken by lawyers or their clients.
In almost all SLAPP cases, the lawyers are using the laws and court procedures available to them: the issue is the ulterior purpose to which those laws and court procedures is being put.
This is why, in my view, attempts to ‘name and shame’ the lawyers involved are misconceived.
(Though, for completeness, I know and deal with many of those who are involved.)
The lawyers that have so far been publicly named are but a sub-set of the lawyers competent and willing to take on such claims.
And – frankly – you do not need parliamentary privilege to ‘name and shame’ the lawyers: all you need to do is look at the case reports to see who they are, and at their own websites to see how they promote their practices.
I happen to be a media defence lawyer (among other things) – acting for journalists, campaigners, and politicians – and I chose not to act for claimants in these sort of cases, but that is entirely a personal choice.
In my experience of seeing dozens of threatening letters (of varying quality), almost all the threats are within the scope of law and practice as it stands.
And if a threatening letter did not come from one firm, I can imagine pretty much the same sort of letter coming from a dozen other firms.
The problem is with the law and practice, and so – if you sincerely want to solve the problem – that is where the solution will be.
Although therapeutic, ‘naming and shaming’ the lawyers involved is a cul-de-sac.
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Another thing to note is that, in England, SLAPP is not just about costs – even if the amounts involved can be eye-watering.
Yes, London claimant lawyers are expensive – too expensive.
But: American lawyers are expensive too, sometimes even more expensive than English lawyers.
Media lawyers in other jurisdictions are also high-charging and highly paid.
Yet, it is in England that certain cases are brought – and threatened.
This is because the problem with SLAPP cases in London is not just the costs, but how those costs can be easily weaponised as part of of a legal threat.
London litigation is often not a game of thrones, but a game of costs.
The dynamics of many cases will come down to costs, and how costs consequences can be inflicted and deflected.
And how this happens comes down to the structure and practice of the relevant law.
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But perhaps the biggest difficulty about discussing SLAPP in England is that the discussion can sometimes seem abstract.
SLAPP is a bad thing, and nice people are against bad things.
Let’s boo at SLAPP!
But the challenge is to make any SLAPP reform work practically – to make a difference in actual cases.
There are a number of ways law and practice can be misused, and so any reform needs to be set against actual cases to see if the reform would make any practical difference.
One thing I recall from the campaign which led to the Defamation Act 2013 is that the key case for mobilising support – the misconceived and illiberal claim brought by the British Chiropractic Association against science writer Simon Singh – turned out not to be directly relevant to the legislation that was then passed.
Little in that Act would stop another such case being brought again – and indeed it was the court’s own decision in that case, and not any legislation, that has stopped further similar claims.
There can be a practical disconnect between cases that attract public concerns and the reforms then promoted for dealing with such concerns.
That is why this blog is going to look over the next few days at a ‘data-set’ of SLAPP cases, to see what the actual problems are and to see what, if any, solutions can be put in place to stop similar cases being threatened and brought.
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In the meantime, I would suggest anyone interested in SLAPP, and what practical reforms can be implemented to prevent such cases, look at the following:-
– the transcript of the oral evidence at the foreign affairs select committee on the use of strategic lawsuits against public participation (or watch it here);
– the excellent and comprehensive work by Susan Coughtrie and the Foreign Policy Centre on SLAPPS – including this policy paper;
– this House of Commons library briefing on SLAPP; and
– the UK government’s recent call for evidence on SLAPP.
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