SLAPP: A question of definition?

In a guest blog for the Bar Council, the co-chairs of the UK Anti-SLAPP Coalition call for legal reforms to protect the public interest.

When we formed the UK Anti-SLAPP Coalition in January 2021, there was little public discourse around strategic lawsuits against public participation (SLAPPs) in the UK. SLAPPs, by their nature, are a hidden problem. The purpose of a SLAPP is to drive information that is in the public interest into the darkness of legally privileged communication. They rarely reach wider society, usually only doing so when those subjected to them are brave enough to come forward and denounce them.

But in the last year, SLAPP cases against investigative journalists Catherine Belton, Tom Burgis and Carole Cadwalladr reached the High Court and, in doing so, significantly raised the profile of the issue. Amid concern that Russian oligarchs have been abusing the UK legal system in a bid to evade scrutiny, the Russian invasion of Ukraine put SLAPPs into further focus. As awareness of SLAPPs has increased, so too has the need for a common understanding of what constitutes a SLAPP.

“In circumstances where Ms Cadwalladr has no defence of truth, and her defence of public interest has succeeded only in part, it is neither fair nor apt to describe this as a SLAPP suit,” Mrs Justice Steyn wrote in her recent judgement for Cadwalladr v. Banks.

This assessment is not one that is shared by the UK Anti-SLAPP Coalition. Our organisations have long deemed the case against Cadwalladr to be a prime example of a SLAPP. We reaffirmed that categorisation at the outset of the trial in January 2022 and we stand behind it now.

This is because SLAPPs are not simply identified with respect to the merits of the claim. They are abusive because they are filed with an improper purpose: to silence speech on matters of public interest. Sometimes, this purpose can be inferred from the frivolous nature of the claim. Other times, we have to look at additional qualities.

The millionaire businessman Arron Banks could have filed his lawsuit against The Observer instead of Cadwalladr. Her investigations had, after all, been published there first and if Banks were serious about recovering damages, they would have been much more readily recoverable from The Observer. In compounding the power imbalance between him and the defendant, his decision to take legal action against her as an individual adds weight to the categorisation of the case as a SLAPP. The financial and psychological toll of a legal action was maximised by forcing the defendant to put her personal assets, including her home, on the line. In the process, the purpose of a SLAPP -  to intimidate and to isolate -  was further advanced.

SLAPPs are a form of harassment and, as such, are often accompanied by other forms of intimidation. Last year, a UNESCO report described Banks’ tweets about Cadwalladr as “menacing” and “highly gendered”. The report observed that, “the online violence Carole Cadwalladr experiences is a feature of the enabling environment for her offline legal harassment.” Just like the lawsuit, the online harassment campaign against Cadwalladr sought to discredit her and her reporting.

While Cadwalladr’s case bears several hallmarks of a SLAPP, it differs in that SLAPP cases rarely make it to court, much less to a full trial. This is because SLAPPs primarily operate through the litigation process. Substantive laws, such as defamation, are just the vehicle through which the law is weaponised. The UK Anti-SLAPP Coalition has seen a range of different laws being abused in the name of SLAPPs, including the Copyright Act 1988, the Data Protection Act 2018, and the Protection from Harassment Act 1997.

One of the most effective ways of tackling SLAPPs is therefore to put procedural safeguards – by means of an anti-SLAPP law – in place that would apply regardless of the law that is being abused. This is what the UK Anti-SLAPP Coalition made clear in our policy paper last year and it’s what we told the Ministry of Justice in our submission to their call for evidence on SLAPPs last month.

While a common understanding of what constitutes a SLAPP is important, we do not believe that procedural safeguards should be predicated on the identification of an improper purpose. Anti-SLAPP laws are already in place in many jurisdictions around the world, including in Canada, Australia, and the United States, and the most effective laws are those that do not apply a subjective test to determine the intent of the litigant.

This is important given the practical difficulties of establishing intent. Indeed, in our respective submissions to the Ministry of Justice’s call for evidence on SLAPPs, both the UK Anti-SLAPP Coalition and the Bar Council argued against the need for a statutory definition of SLAPP. Instead we called for "public participation" to be defined, so that any lawsuit targeting acts of public participation would automatically trigger the protective measures needed to minimise the harm of SLAPPs.

Such an approach would hopefully deal with some of the issues that arise from the legal process, too. Much was made of Cadwalladr’s decision to drop the truth defence in 2020 but her decision was based on what the judge had deemed to be the legal meaning of the publications, which Cadwalladr has always maintained were different from what she had intended. Cadwalladr has described how it felt like the judge’s meaning placed her in “the pages of a Kafka novel”; she was going to be put on trial to defend the truth of a statement she had neither said nor meant.

Cadwalladr was ultimately victorious in defending herself against Banks’ legal action, but the fact that a public watchdog was dragged through the court system for years at an eye-wateringly high financial and psychological cost can hardly be considered an outright victory.

As Mrs Justice Steyn states in her judgement, Cadwalladr “made a serious contribution to the discussion of a subject that was of real and abiding public interest”. This is the ultimate determinant of what constitutes a SLAPP: that the litigation process was weaponised to try to suppress a matter of public interest. Public interest speech is the lifeblood of democracy and allowing public watchdogs to be subject to efforts to silence them will, in the end, cost us all.

The co-chairs of the UK Anti-SLAPP Coalition are Jessica Ní Mhainín (Index on Censorship), Susan Coughtrie (Foreign Policy Centre), and Charlie Holt (English PEN).