As a nation, we have always been rightly proud of our long tradition of safeguarding free speech, and of course, of our free press. But an increasing and flagrant abuse of our laws and courts by the ultra-wealthy risks eroding these fundamental liberties.
Strategic lawsuits against public participation, so-called ‘SLAPPs’, aim squarely at shutting down free speech and democratic debate. Kleptocrats – including oligarchs and allies of Vladimir Putin – are using the law to intimidate journalists, publishers and campaigners who expose their corruption and excess.
Typically framed as causes of action in defamation, data protection or privacy law, SLAPPs often feature meritless or exaggerated claims for costs and damages – which those on the receiving end simply cannot afford to defend.
Most recently, British journalist Tom Burgis fought off libel action from a Kazakh oligarch-owned corporation, ENRC. Burgis’ book, ‘Kleptopia’, charts how dirty money is being used around the world, highlighting instances of money laundering and corruption. Reports that Russian oligarchs may be funding these suits, which strike at the heart of our democracy, are entirely unacceptable.
These aggressive lawsuits are on the rise. The Coalition Against SLAPPs in Europe estimates there were 14 cases in the UK last year, a significant increase from just two cases in 2020 and 2019.
But the numbers only paint a partial picture. The problem runs far deeper than the high-profile cases we know about. Threats in the pre-action stages usually cause authors, publishers and news outlets to back down before a case ever reaches court, for fear of sky-high legal costs and long, drawn-out litigation.
So, the ripples from SLAPPs spread widely, with a chilling effect on free speech and democratic debate. Authors and outlets pausing before publishing, or deciding to withdraw stories entirely.
Of course, our legal system respects the right to protect reputation and information for good reason. People must have access to justice to vindicate their rights if they have been wronged.
But the bullying behaviour and abuse of process that typifies SLAPPs flies in the face of justice. It bears all the hallmarks of vexatious litigation – subjecting defendants to inconvenience, harassment and expense out of all proportion to any gain for the claimant.
This isn’t just about protecting freedom of speech. Our justice system’s reputation internationally has always been a source of great pride. SLAPPs risk tarnishing that reputation, damaging the standing of a legal system respected the world over for its fairness and efficacy.
Lawyers who advise clients to abuse the legal system in this way are themselves likely to be in breach of their professional obligations – though I know the vast majority of our legal profession would balk at such conduct.
Indeed, the Solicitors Regulation Authority recently issued new guidance reminding solicitors of their duty to report misconduct, identifying SLAPPs as an example of litigation for ‘improper purposes’.
In January, the House of Commons discussed ‘lawfare’ in a debate called by cross-party backbenchers. As the minister responding, I promised that the government would look at what more could be done to tackle SLAPPs. We acted swiftly to consider the policy options and, last month, the deputy prime minister announced a call for evidence on SLAPPs and libel reform, seeking views on measures that will stop this abuse of our laws in England and Wales.
Reforms under consideration include a new definition of SLAPPs, making it easier for courts to throw out claims meeting that definition. We are also proposing to strengthen defamation defences, as well as capping costs. And, as most SLAPP cases never make it to court, we also want to hear about their extent and use, so we understand fully their insidious effect.
Today, I’m asking you to help us in our fightback against these abuses – to protect both the right of our journalists to expose corruption, and the reputation of our justice system.
As legal professionals, your perspective on these cases and experiences are vital. You have until 19 May 2022 to give us your views – written responses can be emailed or sent via our online consultation.
SLAPPs threaten free speech and democratic debate in our country. They run contrary to everything our justice system stands for, and risk its reputation as a world leader.
James Cartlidge MP, justice minister