SLAPPs and freedom of expression: three proposals for the English courts

Strategic lawsuits against publication participation, or “SLAPPs” are a form of litigation used to censor and intimidate critics, usually media organisations, journalists or freelance writers, human rights defenders or campaigning organisations. Frequently – although not always – the cause of action is defamation. The term is often used to suggest a claim that is brought not out of any genuine need to vindicate reputation but to put the defendant to exorbitant expense and the risk of insolvency, and to drain their time and morale through the demands imposed by the court timetable for litigation.

SLAPPs are widely perceived to interfere with freedom of expression and are politically unpopular. This week in the Republic of Ireland, the Justice Minister Helen McEntee is due to bring a memorandum proposing reforms to Irish defamation law to Cabinet. The press have suggested the memo will bring forward  “measures aimed at stopping powerful individuals from bringing vexatious legal proceedings to silence valid criticism or debate”. SLAPPs were also the subject of a House of Commons backbench debate on 20 January this year.

There are significant difficulties in practice in distinguishing a “SLAPP” from a claim which is an appropriate use of the court system, and further challenges still in distilling the features of “SLAPP” litigation into legal rules which provide adequate safeguards. What the defendant calls a “SLAPP” may, the claimant may see as a necessary action to protect themselves against an unfair and unmerited smear.

The House of Commons debate criticised the claims brought against Harper Collins and Catherine Belton over her book Putin’s People, including that brought by Roman Abramovich who contended that Belton’s book contained defamatory allegations going to corruption in the context of his alleged links to the Russian government.  In a trial heard in the High Court in January (and still awaiting judgment), the defendant Carole Cadwalladr described the claim against her as a SLAPP. This claim was brought over a TED talk containing an allegation (as determined by the court in an earlier trial on preliminary issue) that the claimant, Arron Banks, had told untruths about his relationship with the Russian government and that there were grounds to investigate if his contact with Russia involved any criminal conduct.

These are serious allegations. In both instances, the court found that the allegations the publications bore were “defamatory at common law”, suggesting that the claimant had acted in ways contrary to the shared values of our society. A person  facing these types of allegations would legitimately be concerned that these would damage their reputations and have profound consequences for their personal, professional and public lives. Even where the allegations made have been much less serious, claimants report profound, and sometimes devastating, consequences. Reputational smears can – and often do – have a long afterlife, particularly on social media.

The rule of law requires equality before the law. Reputation also falls within the ambit of Article 8 of the European Convention on Human Rights. Excluding claims at the outset on the basis that a claimant is of a type considered “unacceptable” (or conversely, prohibiting some defendants from being able to defend claims on a similar basis, as was suggested in some proposals in the House of Commons debate) would run counter to these principles.

At the same time, if a claimant cannot be precluded from bringing a claim, a defendant will inevitably be put to expense. The Defamation Act 2013 has sought to introduce a number of measures to protect freedom of expression, including serious harm threshold, tighter rules on the choice of jurisdiction and a public interest defence. While these provisions have enabled defendants to avoid liability in a number of cases, they require engagement with a complex area of law which is costly and carries a risk of becoming liable for the other side’s costs. This risk of costs – and the prospect of bankruptcy or insolvency behind it – presents the greatest difficulty, and source of anxiety for defendants who are individuals and smaller organisations.

Trials of preliminary issue to determine the meaning of a publication being sued upon have been endorsed by the High Court in a number of recent decisions following the 2013 Act precisely because they often end a case at an early stage if it is found that the publication bears little or no defamatory meaning, and in any event usually serve to limit the risks of continuing because it gives the defendant clarity as to what would need to be proved to support a defence. Even these trials – which often tend to reduce costs overall, and are usually short hearings in themselves – may routinely give rise to costs of £25,000 per side (Price v MGN [2019] 1 WLR 1464). These amounts might be low compared to those often incurred in High Court litigation, but are significant for individuals of ordinary means and small scale publications or campaigning organisations.

Costs for full trials are frequently budgeted at £500,000 and much more. Even where a defendant is successful, the irrecoverable proportion of their costs – that is, the part that the court expects a party to bear themselves on the “standard basis” of a costs order – may run into the tens, if not the hundreds, of thousands of pounds. That alone may cause a chill effect for a defendant alive to the risk.

The Government has not made any formal comment recently on the use of SLAPPs. Although it has suggested in the consultation for reforms to the Human Rights Act that protection for freedom of expression should be amplified, it has not identified costs as a specific area of concern.

There are three practical measures which  could be taken within the existing system, without requiring any change to the Defamation Act 2013 or to the Human Rights Act 1998 and  and would enhance protection for defendants without preventing claimants from issuing claims.

1.A defendant indemnity fund 

First, a Government-backed mutual indemnity fund could be established to provide legal expenses cover and cover for costs risk protection for individuals and organisations who identify themselves as at risk of such claims. Members could be commercial or non-profit publishers or broadcasters, writers and journalists or campaigners and NGOs. Costs to the Treasury could be minimised through membership subscriptions and obtaining costs orders.

Conditions of membership could include  requirements to obtain pre-publication legal advice and/or to undertake certain types of checks in advance of publishing some stories in order to provide the basis for a public interest defence at a later stage. Pre-publication legal advice and steps to check or verify an allegation are already standard practice amongst newspapers and broadcasters, and often also undertaken by campaigning organisations. Such standards, taking account the differing resources and pressures arising in different contexts, could not and should not be formulaic “checklists” but would require that the individual and/or organisation consider the subjects (named and implied) of any allegation, the range of allegations that might fairly be said to arise against them, and the basis for making any allegation.

Moreover, and most importantly, an indemnity fund scheme could seek  (through the member it was indemnifying) costs recovery from unsuccessful claimants, or claimants whose conduct was deemed unreasonable. Under current legislation, after-the-event (ATE) insurance premiums  (as well as legal costs) are recoverable from the unsuccessful (or paying) party: frequently the party obtaining the insurance does not pay for the premium upfront.

An indemnity fund scheme could avail itself of that existing rule, and operate by dividing the cover members would be required to obtain between low-cost before-the-event insurance and ATE insurance premiums should litigation against them proceed beyond a certain stage. It could also refer appropriate cases to existing commercial ATE providers, and if appropriate agree to share the risk and benefit.

These proposals reflect a legal and costs model which already exists, albeit adapted to give defendants greater protection by providing scheme membership rather than relying on being able to obtain legal representatives willing to act on conditional or reduced fee arrangements and ATE insurance after a claim has been threatened or issued.

2. Public interest costs orders

Second, specific reforms could be introduced to the costs recovery regime governed by the Civil Procedure Rules. One example would be to introduce “indemnity costs warnings” for defendants who were able to plead a clear and well-articulated public interest defence under s4 Defamation Act 2013. This would mean that a claimant put on such a warning, who continued with the litigation and was unsuccessful would be required to pay all, or virtually all, of the defendant’s costs.

Currently, indemnity costs orders are difficult to obtain, and the prospect of being paid costs only on the standard basis means that a defendant may face the prospect of being tens of thousands of pounds or more (depending on the scale of litigation) out of pocket, or finding legal representatives willing to assume that risk by agreeing not to enforce payment for any sum not recoverable from the other side. A “public interest indemnity order” – or the prospect of one being made – would reduce the potential chilling effect. It would also act as leverage in settlement negotiations, and limit risk and therefore expense, as well as improving financial  returns for a proposed indemnity or insurance scheme in the model suggested above.

3. Judge-led early neutral evaluation

Third, the courts could expand their offer of – and in certain circumstances make compulsory –  judicial early neutral evaluation (ENE). In cases where the defendant indicated that they would seek to rely upon a public interest defence – an ENE could take place after issue of the claim and prior to any hearing and consider the position on meaning, the scope of public interest and relevant compensation or the extent of relief likely to be ordered.

This would allow the parties to take an informed decision as to settlement, pursuit or defence. While it would not prevent a claimant from continuing with a weak claim, it would provide an exit route from legislation before significant costs had been incurred and could allow the parties to do so while “saving face” – perhaps on the basis of joint statements (again, building on the existing practice of statements in open court). It could work particularly effectively in juxtaposition with an indemnity fund scheme and “public interest indemnity orders” – defendants could make perhaps applications directly after if the ENE was favourable on this issue.

A significant advantage of this approach is that, again, it could build on mechanisms already in place. Early neutral evaluation is already available in the

Queen’s Bench Division, usually after the first costs and case management conferenceLomax v Lomax [2019] EWCA Civ 1467. It would, however, require more judges to have expertise in the intricacies of media law: one obvious difficulty in terms of pressure on court resources is that a judge who has participated in an ENE cannot then be involved in the case.

and the court can order and – in other areas of law has ordered - ENE without the consent of the parties,

An ENE would not be appropriate in every case. However, disputes as to defamatory meaning are largely matters of construction and therefore fall within the areas identified already in the QBD Guide. Generally speaking, public interest might not always be an appropriate subject for ENE because it contains a subjective element (s4(2)(b) Defamation Act 2013), being reasonable belief in the public interest: this would normally be difficult to assess without full consideration of the evidence at trial.

However, assuming that in these cases the parties seeking to rely upon public interest are journalists, or professional or semi-professional writers and campaigners, who are willing and able to commit to obtaining pre-publication legal advice and to signing up to industry standards as part of any indemnity scheme, the position may be more straightforward. The scheme’s standards could provide the basis for the public interest submissions: it would then be for the defendant (in a position paper or short series of exhibits with a witness statement) to demonstrate compliance. The claimant could then make representations as to whether compliance was sufficient – particularly whether compliance was sufficient in relation to different defamatory meanings which the early neutral evaluation would consider.

These proposals could be piloted without requiring any change to primary legislation. If they produced little or no practical benefit, they could be abandoned or modified with comparative ease. If successful, they could be adapted and extended into other areas of law – most obviously misuse of private information or civil harassment and protest claims.