Kennedy: Misuse of the law
Senior judges and lawyers on a panel chaired by former Supreme Court president Lord Neuberger have called for legal reforms to curb ‘strategic lawsuits against public participation’ (SLAPPs).
Detailed reform proposals from the High Level Panel of Legal Experts on Media Freedom were launched in London last week, including a pre-action protocol for SLAPPs and a new law to filter them out “at the earliest possible point”.
Panel member Baroness Helena Kennedy QC told the conference, Countering threats to media freedom, organised by the Justice for Journalists Foundation and the Foreign Policy Centre, that along with journalists investigating government corruption and exposing corporate abuses, non-governmental organisations and human rights activists were also victims of SLAPPs.
In her keynote address, she said SLAPPs often involved a misuse of the law while cases were advanced under the guise of normal ‘due process’.
“Ultimately, to prevent or dismiss SLAPPs, those who speak out on issues of public interest, particularly journalists, frequently agree to muzzle themselves to survive, either by apologising, or ‘correcting’ statements they have made.”
Baroness Kennedy said SLAPPs should be taken as seriously as other challenges to media freedom, adding: “This type of litigation is designed to drain resources and chill critical reporting.”
In its reform proposals, the UK working group on SLAPPs called for the practice directions to be updated to include guidance on how security for costs and motions to strike out should be applied.
Judges should be trained by the Judicial College on “how to understand and respond to abuse of process in the context of SLAPPs”.
The working party said that given “the procedural abuse engaged in by SLAPP litigants”, much could be accomplished under the Civil Procedure Rules, which aimed to ensure that the system was ‘accessible, fair and efficient’.
CPR 24.4, on summary judgment, could be amended to require claims targeting public participation to meet a higher threshold.
On costs and the courts’ discretion under CPR 44.2, the working party said a claim could be “meritorious under law but still be pursued using abusive SLAPP tactics”, for example deliberately stretching out proceedings.
CPR 44.2 could be amended so, when making decisions on costs orders, courts have regard whether the claim “targets acts of public participation”.
The working party suggested that a pre-action protocol for SLAPPs would “act as a complement” to the existing one for media and communications claims.
It would include a clear definition of ‘public participation’ and a “statement on the importance of protecting public participation rights”.
There would be a requirement to reply to “good-faith pre-publication letters” enquiring on matters of public interest and, within a reasonable time limit, “engage in any fact-finding process” before launching proceedings.
The working party called on the Ministry of Justice to launch a consultation on a new anti-SLAPP law which could be introduced in the next session of Parliament.
Any law should include “an early dismissal mechanism to filter out SLAPPs at the earliest possible point in proceedings”, along with “robust sanctions” to deter the use of SLAPPs. Security for costs orders should be used and “where necessary, civil restraint orders”.
Professor Can Yeginsu, a 4 New Square barrister and incoming deputy chair of the panel, said: “The use or threat of legal action in order to intimidate or censor journalists by burdening them with mounting legal costs and other civil liability is chilling expression in many countries around the world and interfering with journalists’ abilities to perform their professional duties in reporting on corruption and other abuses of power.
“SLAPPs are a regrettable misuse of civil legal recourse, and an abuse of process of sorts. The High Level Panel is committed to drawing attention to these sorts of misuses of the law, and to working with its partners to propose solutions to what is a growing and serious problem for journalists around the world.”
The International Bar Association’s Human Rights Institute, of which Baroness Kennedy is director, acts as the panel’s secretariat. The panel was convened in July 2019 at the request of the UK and Canadian governments.
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