Coe: English law woefully out of step with Europe
There needs to be a new early disposal mechanism for strategic lawsuits against public participation (SLAPPs), academics have said, describing existing anti-SLAPP provisions as “a false dawn that will not address the problem”.
As part of this, the Solicitors Regulation Authority would annually review which law firms had been involved in SLAPPs.
The government said last summer that it recognised “an urgent need for legislation” to prevent SLAPPs, following the demise of a private member’s bill in the election ‘wash-up’, but would not commit to a standalone bill.
The article in the Journal of Media Law was written by Peter Coe, an associate professor in law at Birmingham University who sat as the UK’s independent member of the Council of Europe’s Committee of Experts on SLAPPs, Rebecca Moosavian, an associate law professor at Leeds University, and Paul Wragg, a professor of media law at Leeds.
They said an overview of European literature on SLAPPS identified England and Wales as a “SLAPP hotbed” and “a forum of choice for SLAPP instigators because of the claimant-favourable conditions created by English defamation law”.
The dedicated early disposal mechanism for SLAPP claims introduced by the Economic Crime and Corporate Transparency Act 2023) included a four-stage SLAPP definition which was “inadequate because it is too narrow and rigid”.
The provisions only covered economic crime, and not “the more general use of SLAPPs”, for example where there were issues relating to sexual misconduct or environmental harm.
Another “contentious aspect” was that categorising a claim as a SLAPP turned on the claimant’s intention, requiring the court to make a subjective judgement of the claimant’s state of mind.
The study said recent cases showed the courts “trying to resolve alleged abusive claims in a flexible, fact-sensitive, and pro-active – albeit cautious – way within the existing civil framework’s limitations”.
It was “apparent that further guidance to assist the courts in pro-actively filtering out abusive and SLAPP claims is warranted”.
The academics proposed a “new dedicated SLAPP early disposal mechanism” for all actions involving public interest speech, rather than being confined to economic crime.
It would recognise that in most cases “the SLAPP label will be deeply contested”, and although a court “may deem a claim a SLAPP if it is confident of doing so”, it did not have to in order to dispose of a claim at an early stage.
The mechanism must “fully utilise” the 10 ‘SLAPP indicators’ set out in the Council of Europe’s recommendation on SLAPPs last April – this non-exhaustive list includes exploiting an imbalance of power, using procedural or litigation tactics to drive up costs, targeting individuals rather than their publications, an accompanying “public relations offensive”, and the claimant or their representatives engaging in “legal intimidation, harassment or threats”.
In preparation for an early disposal hearing, claimant law firms would be “required to declare to the court whether they have commissioned, made a referral to or in any way worked with a reputation management firm for the benefit of the claimant”.
Meanwhile, the courts service would maintain a record of claims that had been formally deemed a SLAPP and subject to early disposal, or flagged as a ‘case for concern’ – and the Solicitors Regulation Authority would review this annually “to monitor the firms and individual solicitors acting for claimants in such cases” and investigate any professional conduct issues.
The academics said: “Though the remit of our proposal is necessarily restricted to issued SLAPP claims, aspects of our package may start to have a potential indirect effect on the larger and more intractable problem of pre-action SLAPPs.”
Dr Coe, who led the study, commented: “English law is famously weak when it comes to SLAPPs and is woefully out of step with Europe and other parts of the world on this issue. Whilst some of these measures might seem controversial, the harm to public life caused by SLAPPs cannot be understated.”
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