SLAPPs may be slapped down

But still not yet

The government is proposing new legislation to protect free speech. It’s aimed at what are called SLAPPs, which is meant to stand for “strategic lawsuits against public participation”.

If the proposals are enacted, people who believe that claims against them come within this definition would be able to ask a judge to dismiss them at an early stage.

A news release from the Ministry of Justice, issued yesterday for publication this morning, explains how the proposals would work:

Under the reforms, a court will apply a new three-part test to determine whether a case should be thrown out immediately or allowed to progress.

First, it will assess if the case is against activity in the public interest, for example investigating financial misconduct by a company or individual.

Then, it will examine if there’s evidence of abuse of process, such as whether the claimant has sent a barrage of highly aggressive letters on a trivial matter.

Finally, it will review whether the case has sufficient merit — specifically, if it has a realistic prospect of success.

If the case did not meet these tests, then presumably it would not be allowed to proceed. But no doubt there would be an appeal.

According to the press release, these proposals have now been published as part of the government’s response to a call for evidence it issued four months ago. But at time of writing the announcement page on the Ministry of Justice website and the consultation page had not been updated since 22 March. So it’s not yet possible to analyse the proposals in any detail.

In particular, it’s not clear how much of a deterrent they would be. The government says that

SLAPPs typically involve wealthy individuals or large businesses using the threat of endless legal action and associated costs — sometimes totalling millions of pounds — to muzzle their opponents under defamation and privacy laws.

This tactic is increasingly being used to intimidate journalists, authors, and campaigners into limiting or abandoning critical stories or books.

Most cases never make it to court because authors often back down under a barrage of aggressive legal letters. Many retract stories in fear of financial ruin.

If cases never make it to court, the new powers would not apply.

What is clear is that the proposed early dismissal mechanism would require primary legislation. The justice secretary Dominic Raab has promised to “legislate at the earliest opportunity”.

Given the current political uncertainty, it’s not clear when that will be.

Separately, the government has promised “a new costs protection scheme to level the playing field between wealthy claimants with deep pockets and defendants”. This could be introduced by secondary legislation. However, the government will need to consult the Civil Procedure Rules Committee before it can set out the design of the scheme and the level of cost caps.

Tom Burgis with his publisher Arabella Pike

In its press release, the government refers to a claim brought by a Kazakh-owned mining firm against the Financial Times journalist Tom Burgis and the publishers of his book Kleptopia: How Dirty Money is Conquering the World.

The case was thrown out by the High Court at a preliminary stage earlier this year. But the government says that the purpose of SLAPPS is often “to suppress publications without a case ever coming to court and being reported”.

I interviewed Burgis at the time and outlined one of the government’s options in March.

Journalists’ representatives have told the Ministry of Justice they welcomed these proposals.

Update 0946: the Ministry of Justice has now published its response. As predicted, they government can’t quite decide what a SLAPP is:

It is clear that effectively dealing with SLAPPs is contingent on being able to appropriately identify them early on, thereby limiting the threat of time-consuming and costly litigation while preserving access to justice for legitimate claims.

We agree that a rigid definition risks claims that should be considered SLAPPs falling out of scope, while too flexible an approach would prevent meritorious claims from proceeding.

As such we will be pursuing work to develop a means for identifying SLAPP cases so that they can be subjected to special treatment in terms of case and costs management measures such as an early dismissal procedure…

Evidence was submitted across the board in support of a definition of SLAPPs. Considering the difficulty of nailing down an exact definition, and the risk that doing so could create loopholes, the government considers that SLAPPs should be defined in reference to their common characteristics.