Efforts Growing To Curb SLAPPs

Lawyers at last week’s Anti-SLAPP conference, coordinated by the Justice for Journalists Foundation and the Foreign Policy Centre, have criticised the ‘SLAPP industry’ in London’s legal sector and courts.

Strategic lawsuits against public participation (or SLAPPs) involve corporations or individuals avoiding the publication of articles critical of them by undergoing a lengthy litigation with the news publisher, whereby the aim is not to win the court battle but to delay, so that news publishers cannot afford to continue their defence and are forced to drop the story.

The conference cited Clare Rewcastle Brown, a British activist and investigative journalist, as a clear example of the SLAPP problem. Rewcastle Brown has claimed she has suffered persecution since reporting on an alleged corruption scandal in Sarawak, Malaysia.

A working group of legal and other experts presented a set of recommendations for curbing SLAPPs, stating they need to be “de-legitimised”.

They recommended that cases needed to be concluded as quickly as possible in court, that defendant costs should be kept to a minimum whilst litigants should face sanctions for cases judged to be SLAPPs.

The group also proposed judicial guidance, civil procedural reform and a UK anti-SLAPP law, similar to those in the U.S. They outlined specific measures such as updated practice to enforce security for costs on claimants and to reinforce the practice of strike-out powers against cases bearing the trademarks of SLAPPs.

Rupert Cowper-Coles, partner at City firm RPC, said: “We’re seeing increasing use of data protection laws. These don’t currently have the protections and safeguards which we’ve built into defamation… we don’t have a public interest defence and the journalism exemption is looking narrower and narrower by the day.”

The group also recommended creating pre-action procedure, which would include engaging in good faith with the right-to-reply process, which the court would expect parties to engage with before going to court. Sandhiya Sophie Argent, a freelance media lawyer, said this process was currently abused by claimants using right of reply to “intimidate and threaten”.

The group also called on the Ministry of Justice to consult on an anti-SLAPP law. This would include an early dismissal mechanism to rule out SLAPPs. Courts would be permitted to issue security for costs and, where essential, civil restraint orders along the lines of those imposed on persistently vexatious litigants. The law should also rule that costs are borne by the litigant, if a case is ruled to be a SLAPP.