Stephens: One of the lawyer signatories
Media lawyers have joined forces with newspaper editors and others to urge the government to tighten up the Strategic Litigation Against Public Participation Bill.
They said the bill “falls short” of achieving the goal of protecting public interest speech from being silenced by SLAPPs.
In February, the government threw its support behind a private member’s bill put forward by Labour MP Wayne David, which replicates the SLAPPs provisions of the Economic Crime and Corporate Transparency Act 2023 beyond economic crime.
It defines in law what a SLAPP is, requires claimants to prove it has a reasonable chance of success to advance it in court, and protects defendants from costs orders unless their conduct justifies one.
The letter to Lord Chancellor Alex Chalk – coordinated by the UK Anti-SLAPP Coalition – comes ahead of the bill’s committee stage and expressed disappointment that the government has not responded to concerns expressed about the 2023 legislation.
“If enacted in its current form, the bill risks becoming an ineffective, inaccessible, and ultimately redundant legal instrument,” the letter said.
The lawyers among the 61 signatories are partner and head of media Rupert Cowper-Coles and senior associate Samantha Thompson at RPC; Matthew Dando, partner and head of media litigation at Wiggin; David Hooper, author of Buying Silence; Matthew Jury, managing partner of McCue Jury & Partners; Baroness Helena Kennedy KC; Nicola Namdjou, general counsel at Global Witness; Gill Phillips, former editorial legal director at The Guardian; David Price KC; Pia Sarma, editorial legal director at Times Newspapers; and Mark Stephens, partner at Howard Kennedy.
They called for a change in how the court is to determine if the legal action can be identified as a SLAPP from a subjective to an objective test.
As drafted, the bill requires the judge to assess the claimant’s intention; the proposed amendment would change the test to whether the claimant’s behaviour “can be reasonably understood as having, or as being intended to have” certain consequences.
The letter said: “Using the subjective test will hinder the early dismissal mechanism that sits at the heart of this bill, but by making a small but important amendment, we can ensure courts and judges are able to make timely, consistent and evidence-based determinations of SLAPP cases before legal costs have accrued.”
The signatories also called the definition of public interest to be refined. The bill identifies four particular matters as being of public interest: behaviour of the claimant or any other person that is, or is alleged to be, unlawful; statements made by the claimant or any other person that are, or are alleged to be, false; public health and safety, the climate or the environment; and an investigation or review being undertaken by a public body.
The letter said this could introduce “unnecessary uncertainty”, adding: “While the examples in the bill are only illustrative, it is vital that the definition demonstrates the breadth and diversity of public interest reporting to give confidence to public watchdogs.”
Signatories include the editors of DMG Media, The Wall Street Journal, The Guardian, The Telegraph, The Times and The Sunday Times, Private Eye, and The Economist.
Well-known investigative journalist Catherine Belton, who faced SLAPPs as the author of Putin’s People, said: “It’s really important that after all the crusading work by NGOs and MPs, journalists don’t end up with a law that is ultimately ineffective or worse, counterproductive, in combating SLAPPs.
“In its current form, the proposed legislation would not improve the situation for any journalist and instead more likely strengthen any claimant’s hand, as it will be near-impossible to prove a claimant’s intent.
“This law must be urgently amended, otherwise we risk shooting ourselves in the foot.”
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