"SLAPP" claims: Defamation claimants (and solicitors) may get stick
9th September 2022
What are SLAPP defamation claims?
Recent reporting in relation to a number of high profile defamation claims (including those involving Johnny Depp/Amber Heard, Rebecca Vardy/Colleen Rooney and “brexiteer businessman” Arron Banks) has sparked debate over what are known as “strategic lawsuits against public participation” (so-called SLAPP claims).
A SLAPP generally refers to an abuse of the legal process which is designed to intimidate an opponent. In this context it involves the threat or issue of a defamation or privacy claim which is intended to deter or prevent publication of what might be viewed as unflattering or offensive content.
SLAPP defamation claims in the US
Anti-SLAPP legislation exists in several states in the USA. The strictness of such legislation varies from state-to-state. For instance California is known as having very strict anti-SLAPP legislation, whereas until recently, Virginia had much weaker protection in place. There has been much commentary regarding Johnny Depp’s decision to file a defamation claim against Amber Heard in Virginia and the fact that it may have been a strategic decision given the more lenient anti-SLAPP laws that were in place at the time.
SLAPP defamation claims in the UK
In England and Wales there is no specific SLAPP legislation. Instead, the ‘public interest defence’ allows a defendant to argue that it has published alleged defamatory content on the basis that it was in the public interest.
In England and Wales we also have to balance Article 8 of the European Convention on Human Rights (ECHR) i.e. the right to respect of private and family life, against the right to freedom of expression under ECHR Article 10.
Proposed reform
There are many who view privacy rights as offering too much protection. The UK government has therefore consulted on possible reforms in this area. The consultation closed in May and the government’s response was published on 20 July 2022 (the Response). The Response sets out high level plans for a package of measures designed to tackle the increasing use of SLAPPs in the courts of England and Wales. Proposals include a new mechanism for the early dismissal of SLAPPs and a new cost-capping regime which will be designed to deter influential and wealthy individuals and corporates from silencing critics via protracted and expensive litigation.
It appears from the Response that the government is particularly concerned regarding potential abuse of the British legal system by Russian oligarchs and associated corporations. Then-Deputy Prime Minister and Secretary of State for Justice Dominic Raab said: “We won’t let those bankrolling Putin exploit the UK’s legal jurisdiction to muzzle their critics”.
Solicitors Regulation Authority interest
The SRA is also taking a keen interest in SLAPP defamation claims. In June 2022 it reportedly opened 20+ cases against firms being investigated for possible wrongdoing over SLAPP litigation.
The SRA is clearly concerned to uncover conduct falling foul of SRA standards. The SRA has stated it intends, “to put firms on notice of the behaviours that are unacceptable, and which will amount to a breach of our standards”.
What’s on the UK horizon?
The Ministry of Justice is working to implement measures to tackle SLAPPs and associated conduct. The catalyst for change has, in part, been influenced by the Russia-Ukraine conflict – in particular the focus on deterring and/or disposing of groundless legal claims being made by oligarchs and state-controlled entities connected to the Putin regime.
It remains to be seen how current proposals will translate into legislation, and whether reforms can be appropriately balanced so as to also protect those legitimately wanting to protect their own reputation and privacy. Walker Morris will monitor and report on developments.
How we can help
Whether involving SLAPP claims or not, the effect of defamatory publications can be pervasive and difficult to quantify, yet potentially devastating. Walker Morris’ Commercial Dispute Resolution specialists are experienced and expert in the law of defamation. Whether you are an individual or business whose reputation is under threat from potentially defamatory publications, or whether you are a defendant facing a potential claim or complaint, we will be able to provide a tailored resolution strategy, including taking into account any associated public relations and commercial considerations.
For further advice or assistance, please contact Gwendoline who will be very happy to help.
