Defamation or SLAPP? Understanding the thin line and potential consequences
Recent developments include proposed laws to protect defamation cases from being wrongly perceived as SLAPPs.
Defamation cases are now being accompanied by growing concerns about Strategic Lawsuits Against Public Participation (SLAPPs). SLAPPs are described as legal actions primarily intended to silence, intimidate, or punish individuals or organisations usually involved in expressing critical views. These lawsuits pose a particular threat to civil society’s freedom of expression, investigative journalism, activism, and public debate and public interest organisations. Law firms have faced criticism in Parliament regarding their involvement in SLAPPs, emphasising the need for caution and responsible legal action. When dealing with defamation cases clients and lawyers now need to be very careful about being accused of undertaking SLAPPS.
Indeed, the EU has already taken steps, with a proposed Anti-SLAPP Directive announced in April. In the US, 34 states already have anti-SLAPP laws in place, and this year Congress has introduced the first federal SLAPP Protection Act. Moreover, the US has also launched the Defamation Defence Fund, recognising the impact SLAPP actions have on journalists, as they “are designed to deter them from doing their work.”
The litigation process has garnered attention as a tool that has the potential to stifle free speech and intimidate individuals or organisations expressing critical views. There is a growing concern that litigation is increasingly viewed as a tactic by financially powerful elements intent on undermining democratic values and suppressing criticism, fair reporting, and debate in civil society. The European Union lacks specific legislation directly targeting SLAPPs. Consequently, responses to SLAPPs vary across member states, leading to inconsistent levels of protection for victims and defendants.
Traditionally in the English system vexatious litigation is discouraged through cost sanctions, though this has often proved to be an inadequate deterrent to financially well-resourced claimants, and an unfair burden on defendants to those kinds of civil claims. Thus, there is an important ongoing debate regarding which elements should be included in future anti-SLAPP provisions.
The UK Anti-SLAPP coalition, established in 2021, has called for urgent action to address the issue and proposed a comprehensive Model UK Anti-SLAPP law, which has garnered much support, that includes:
- a general assumption or starting point that those costs (incurred by a party during litigation; including legal fees, court fees, and related expenses) should not be awarded in favour of the claimant, in cases where there is a significant public interest element involved.
- a ‘fast-track’ process to provide for an early determination of the merits of a claim and dismiss SLAPP cases.
- measures to protect defendants from financial harm during SLAPP proceedings.
- provisions for anti-SLAPP orders to deter the filing of frivolous claims.
The UK government has recently proposed amendments to the Economic Crime and Corporate Transparency Bill, which have been well received by journalists. These changes would give judges greater powers in combatting the effect of SLAPPs by creating a new early dismissal process. This provides for SLAPPs to be dismissed at an early stage, yet many within the UK Anti-SLAPP coalition are repeating their calls for standalone legislation.
It is crucial to be aware of the key characteristics that may cause a defamation claim to be treated as a SLAPP. While specific criteria may vary across jurisdictions, some common indicators include:
- disproportionate claims: SLAPPs often involve claims seeking excessive damages that are far beyond the actual harm suffered. This disproportionate nature can indicate that the claim is intended to intimidate or silence the defendant rather than seeking legitimate redress.
- chilling effect: SLAPPs are designed to discourage free speech and critical expression by creating a climate of fear and intimidation, thus discouraging individuals or organisations from expressing critical views or engaging in activities that contribute to public discourse.
- targeting public participation: SLAPPs frequently target individuals or organisations engaged in public interest activities, such as journalism, activism, or community advocacy; in turn stifling these activities and suppressing the expression of dissenting or critical opinions.
- lack of merit: SLAPPs may lack substantive legal basis or evidentiary support, serving primarily as a means of harassment in seeking to burden the defendant with legal expenses, reputational damage, and emotional stress, as opposed to productive resolution to the dispute.
Pursuing a SLAPP
Engaging in or being accused of undertaking a SLAPP can have serious repercussions for both clients their and lawyers. Firstly, the filing of a SLAPP may be portrayed as an attempt to suppress free speech and stifle public participation, which can result in negative public perception and reputational harm for the claimant. The legal profession takes the matter seriously, and regulators have cautioned legal professionals as to the consequences of acting for claimants in such cases. Increasingly, clients may find it difficult to find lawyers prepared to bring defamation cases unless satisfied that evidence exists to support a meritorious and bona fide claim.
For defendants, a SLAPP can have devastating consequences. Defendants in these cases are often not international news outlets and publishers, but individual independent journalists with limited financial resources. SLAPP pursuers prey upon their financial inequalities to inflict monetary pressure on the journalist to issue an apology or retraction, thus suppressing any negative comment. This places a defendant in the invidious position of having to decide between issuing an undeserved apology (which may ultimately undermine a journalist’s reputation and credibility) or the stress and financial handling of prolonged and deliberately acrimonious litigation.
However, in some cases, the act of resisting a SLAPP can earn public support and sympathy. This highlights the importance of protecting free speech and public participation, in an era of heightened awareness of censorship and free speech issues.
Protecting a claim
Given the attention and current sensitivities around this issue, it is perhaps unsurprising that defendants now increasingly try to characterise general claims as SLAPPS. Therefore, to ensure that a defamation claim does not inadvertently become a SLAPP, the following should be considered:
- the claim should be based on valid legal grounds supported by sufficient evidence and that it merits genuine concern for the harm suffered.
- consult experienced defamation lawyers who can help navigate potential SLAPP risks.
- maintain a record of the motives and intentions behind pursuing the claim, highlighting the public interest elements and the absence of any ulterior motives.
- explore wherever possible mediation or settlement options that allow for a resolution outside of lengthy court battles, promoting amicable outcomes and saving costs.
- stay informed about the evolving legal landscape surrounding SLAPPs and defamation laws.
In a climate where SLAPPs are increasingly being criticised, clients and lawyers must exercise caution and ensure that genuine defamation claims are not undermined by being perceived as SLAPPs. By understanding the elements that differentiate a regular claim from a SLAPP, and following the provided advice, individuals and organisations alike can avoid these pitfalls, protect their reputations, and legitimately pursue defamation cases.
Varun Zaiwalla is a barrister and Zuhair Farouki is a solicitor at Zaiwalla & Co