The UK Government announced, on Tuesday 13 June, an anti-SLAPP amendment to the Economic Crime and Corporate Transparency Bill, currently progressing through Parliament. If adopted as part of the Bill, the amendment would provide courts in England and Wales with the power to strike out before trial SLAPPs claims that relate to information disclosed in the public interest protecting society from economic crimes.
The UK Anti-SLAPP Coalition today welcomes this amendment, which if brought into law would be the first anti-SLAPP measure in the UK. It provides a robust new threshold test along the lines presented in our coalition’s model UK Anti-SLAPP Law (published in November 2022) and elevates the importance of free speech and public interest relating to economic crime. Some analysis of this amendment is provided overleaf, with comments on this development from the co-chairs of the UK Anti-SLAPP Coalition below:
“The UK is the leading international source for legal threats facing journalists investigating financial crime and corruption around the world, as identified by FPC research in 2020. Over 70% of the cases referenced in our April 2022 report on this issue ‘London Calling,’ published with ARTICLE 19, were linked to economic crime. Today’s announcement is therefore a crucial step towards preventing those benefiting from proceeds of crime from being able to use them to shut down scrutiny into that wrongdoing by misusing UK law. Nevertheless, this is only a partial success story – the UK Government must move as quickly as possible to ensure such protections are available to all those subject to SLAPPs, regardless of the subject matter. For example, one of the most notable recent SLAPP cases – brought by Russian oligarch Yevgeny Prigozhin against Bellingcat founder Eliot Higgins, would not be covered by this new amendment as it related to claims (now confirmed) that Prigozhin is the head of the mercenary Wagner Group,” said Susan Coughtrie, Director of the Foreign Policy Centre (FPC).
“Putting aside the inherent limitations of this Bill as a vehicle for SLAPPs protection, this amendment is a huge step forward and we encourage Parliament to work constructively to build on its promising framework. The amendment can and should be strengthened in a number of small but crucial ways: in particular, Parliament should reduce the burden on the defendant in meeting the definition of a SLAPP, particularly with respect to the subjective intent of the filer. With no provision for compensating those targeted by SLAPPs or sanctioning those who pursue them, the amendment is no substitute for a standalone anti-SLAPP law – but it represents significant progress,” said Charlie Holt, European Head of Global Climate Legal Defense (CliDef).
“While we warmly welcome today’s announcement, we nonetheless see this amendment as a stepping stone rather than a final destination. Most of the SLAPPs that have reached public attention in recent years have been related to financial crime and corruption, but any and all public interest speech can be subject to a SLAPP. We must ensure that equal protection is afforded to everyone speaking out in the public interest regardless of the subject matter. The momentum that has led to this amendment is indicative of the current political will to put an end to SLAPPs. We urge the Government to seize the opportunity to bring forward a comprehensive standalone anti-SLAPP law as soon as possible,” said Jessica Ní Mhainín, Head of Policy and Campaigns at Index on Censorship.
“This is an important and much-needed first step, and we urge the Government to continue its work by taking action to ensure protections are made universally available, and not only for those subject to SLAPPs that relate to economic crime and corruption. We thus warmly welcome the Government commitment to tackle all SLAPPs and are convinced that the best way to do that would be to introduce a standalone law, following the UK Anti-SLAPP Coalition’s model law, which has already received widespread support from across media and civil society” said Dalia Nasreddin, UK Campaigns Manager, English PEN.
Overview of the Government led amendment on SLAPPs
Positives:
- Robust threshold test with the burden on the claimant to show that the claim is more likely than not to succeed at trial.
- Profile of the defendant is not prescribed – so can be used by anyone – journalist, whistleblower, activist, academic, etc – who is disclosing information in the public interest relating to economic crime and corruption.
- Recognises need to defer to courts to determine rules of admissibility as a means of managing costs
- Cost protections in place for SLAPP defendants if they lose the case.
Negatives:
- The scope of the amendment is limited by a restrictive definition of “SLAPP”. Specifically it:
- Restricts the application of the amendment to claims relating to the “public interest in protecting society from economic crimes”.
- Introduces an unnecessary element of uncertainty by making the operation of the law contingent on the belief of the defendant.
- Requires the court to identify the intent of the filer – a notoriously difficult, time consuming and costly task. While this is given shape by illustrative examples provided in the amendment, these examples would not cover many cases widely recognised as SLAPPs.
- Lacks any means of compensating the defendant or punishing the claimant.
- No provision to suspend proceedings, needed to avoid abuse pending resolution of any anti-SLAPP motion.
Notes:
- Of the 35 cases referenced in the Foreign Policy Centre and ARTICLE 19’s report ‘London Calling’: The issue of legal intimidation and SLAPPs against media emanating from the United Kingdom, published in April 2022, at least 25 (70%) had a connection to financial crime and corruption.
- The Foreign Policy Centre’s Unsafe for Scrutiny report published in November 2020, which surveyed 63 investigative journalists in 41 countries working to uncover financial crime and corruption, found that:
- 73% of all respondents stated they had received legal threats as a result of information they had published, with more than half saying it had made them more cautious as a result.
- Of the 71% of respondents who reported experiencing threats, legal threats were identified as having the most impact on their ability to continue working (48%), more so than psychosocial (22%), or physical and digital threats (each 12%).
- Crucially, the UK was found to be by far the most frequent international country of origin for legal threats after the journalists’ home countries. It was almost as frequent a source of these legal threats (31%), as all EU countries (24%) and the United States (11%) combined.
