Understanding SLAPPs: Protecting Your Defamation Case

Barrister Varun Zaiwalla and Solicitor Zuhair Farouki's article was published in Solicitors Journal, 8 July 2023, and can be found here.

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 organizations 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 organizations. Law firms have faced criticism in Parliament regarding their involvement in SLAPPs, emphasizing 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 US states already have anti-SLAPPs 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” [1].

In this blog post, we will discuss the latest developments surrounding SLAPPs, identify the elements that can turn a regular claim into a SLAPP, explore the potential consequences, and provide a helpful to-do list for clients to ensure their claim does not inadvertently become a SLAPP.

Latest Developments in SLAPP Cases

SLAPPs have garnered attention as a tool to stifle free speech and intimidate individuals or organizations expressing critical views. 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.

Although generally the party who is unsuccessful in the case is normally required to pay the costs of the successful party, this has often proved to be an unfair burden and 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 legislation, which has garnered much support, that includes:

a. 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;

b. A ‘fast-track’ process to quickly determine the merits of a claim and dismiss SLAPP cases;

c. Measures to protect defendants from financial harm during SLAPP proceedings; and

d. 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 warmly received by journalists and that 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’s Anti-SLAPP coalition are repeating their calls for standalone legislation to de instilled.

Elements That Can Transform a Valid Defamation Claim into a SLAPP

It is crucial to be aware of the key elements that can characterize a defamation claim as a SLAPP. While specific criteria may vary across jurisdictions, some common indicators include:

a. Disproportionate claims: SLAPPs often involve claims seeking excessive damages that are far beyond the actual harm suffered. This disproportionate nature can indicate that the primary intent of the claim is to intimidate or silence the defendant rather than seeking legitimate redress.

b. Chilling effect: SLAPPs are designed to discourage free speech and critical expression by creating a climate of fear and intimidation, thus discouraging individuals or organizations from expressing critical views or engaging in activities that contribute to public discourse.

c. Targeting public participation: SLAPPs frequently target individuals or organizations 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.

d. 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.

Consequences of Pursuing a SLAPP

Engaging in or being accused of undertaking a SLAPP can have serious repercussions for both clients and lawyers. Firstly, the filing of a SLAPP may be seen as an attempt from the pursuer to suppress free speech and stifle public participation, which can result in negative public perception and backlash. Secondly, those filing the SLAPP will commonly be met by substantial legal expenses, such as defending against counterclaims, dealing with motions to dismiss, and engaging in extensive legal battles that can often render cases seemingly interminable.

The defendants of a SLAPP are also routinely burdened with negative consequences, such as the financial burden such a case would constitute to them since defendants in these cases are often news publications and independent journalists with limited financial resources to fight such allegations. SLAPP pursuers usually know this and seek to inflict financial pressure on the journalist to issue an apology or retraction, thus suppressing any negative statements. This would place defendants under public scrutiny and subject them to reputational damage, as navigating a legal battle, dealing with reputational attacks, and enduring prolonged litigation can have a significant toll on the individuals or organizations targeted.

However, in some cases, the act of resisting a SLAPP can garner 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 Your Claim: Advice to Avoid SLAPP Allegations

To ensure that your defamation claim does not inadvertently become a SLAPP, the following should be considered:

a. Ensure that your claim is based on valid legal grounds supported by sufficient evidence and that it merits genuine concern for the harm suffered.

b. When making statements, prioritize truthful and fact-based information that serves a legitimate public interest, rather than personal vendettas or unsubstantiated accusations.

c. Consult with experienced defamation lawyers who are well-versed in the intricacies of defamation law and can help you navigate potential SLAPP risks.

d. Maintain a record of your motives and intentions behind pursuing the claim, highlighting the public interest elements and the absence of any ulterior motives.

e. Explore wherever possible mediation or settlement options that allow for a resolution outside of lengthy court battles, promoting amicable outcomes and saving costs.

f. Stay informed about the evolving legal landscape surrounding SLAPPs and defamation laws to protect your claim effectively.

In a climate where SLAPPs are increasingly being criticized, it is crucial for clients and lawyers to exercise caution and ensure that their defamation claims are not perceived as SLAPPs. By understanding the elements that differentiate a regular claim from a SLAPP, being aware of the potential consequences, and following the provided advice, individuals and organization alike can protect their reputations and preserve the integrity of their defamation cases.