The UK Anti-SLAPP Coalition remains seriously concerned about the viability of the Strategic Litigation Against Public Participation Bill (SLAPP Bill), after key opportunities were missed to strengthen the Bill during the House of Commons committee stage that took place yesterday, Wednesday 8 May.
Vital changes to the SLAPP Bill, tabled by Wayne David MP and backed by the Government, have partially addressed the concerns raised by the Coalition and others. However, post-Committee stage, the Bill is still not sufficiently robust to be an effective mechanism to counter SLAPPs.
Positive developments included a more objective approach to the identification of “intent”, reducing the need for costly and lengthy satellite litigation, and a more inclusive approach to the definition of “public interest.”
Outstanding issues remain however with the third part of the three part test, which would identify whether or not a case can be classified as a SLAPP. This predicates the classification of the case on whether or not it’s “reasonable to conclude” that the behaviour of the claimant “is intended to cause the defendant any harm or inconvenience beyond that encountered in the course of properly conducted litigation.” The reference to “harm” includes (but is not limited to) (a) “expense; (b) harassment; (c) alarm; (d) distress.”
Aside from the overarching issue of the high threshold this three-part test approach creates, the reference to harm or inconvenience “beyond that encountered in the course of properly conducted litigation” implies that there is an acceptable level of harassment that should be tolerated. Moreover, despite verbal reassurances from the Ministry of Justice Minister, Mike Freer MP, at the Committee stage, the framing of the clause does not sufficiently capture “harm” perpetuated against SLAPP targets outside the courtroom or before the case is filed.
Sir David Davis MP had tabled amendments at Committee stage, which would go towards remedying clause 2(1)(c), but these were not moved for a vote after Davis secured assurances that the Ministry would look again at this section. The same applied to another amendment tabled by Davis that would have added useful clarity to the Bill by introducing a section on ‘Purpose and Interpretation’.
The UK Anti-SLAPP Coalition calls on the Ministry of Justice to follow through on this commitment to review the Bill’s wording prior to the report stage and, in particular, to take steps to address the remaining areas of concern.
Charlie Holt, co-chair of the UK Anti-SLAPP Coalition said:
“Even with a more objective test in place, the early dismissal mechanism introduced by the SLAPP Bill imposes far too high a burden on the defendant to provide meaningful protection against SLAPPs. Should courts understand intent to cause harm or inconvenience only in the context of litigation conduct, it will be all-too easy for a skilled and adaptable lawyer to navigate their way around the mechanism.
It is crucial therefore that the text is further amended to establish a sufficiently broad understanding of “harm or inconvenience” – thereby ensuring that this new anti-SLAPP mechanism is accessible to all public watchdogs facing such legal abuse.”
Susan Coughtrie, co-chair of the UK Anti-SLAPP Coalition said:
“Given Sir David Davis’ amendments were acknowledged by the Minister during committee to be complementary with the ‘thrust’ of the Bill, it is disappointing that the Government, whose support is instrumental for the viability of the SLAPP Bill, has thus far not taken the opportunity to add much needed clarity and context to the body of the draft law.
Wayne David MP and the UK Government should be commended for their commitment to address SLAPPs. However, in fulfilling its ambition to become the first national legislature to adopt a standalone anti-SLAPP legislation, the UK must also ensure it gets it right in creating the corrective it seeks. This Bill is far from the standard set by the Coalition’s Model UK Anti-SLAPP Law, but nevertheless it can, and must, be strengthened. A law that in practice fails to be an effective mechanism to protect those speaking out in the public interest will have a damaging legacy.”
Nik Williams, co-chair of the UK AntI-SLAPP Coalition said:
“It is disappointing that the Government is not putting the same energy into improving the Bill in line with the important amendments proposed yesterday by Sir David Davis MP as it is in defending the current flawed draft as the singular way to stamp out SLAPPs. While we welcome the amendments accepted to replace the subjective test and strengthen the public interest provisions, the Bill still falls far short of meaningful protection. This has made the 3rd reading/report stage even more important. Without more ambition everyone in society who speaks out in the public interest will continue to be vulnerable to abusive legal intimidation.”
Background
The UK Anti-SLAPP Coalition’s model law can be found here.
Additional Notes on Further Needed Amendments:
New text in Bold to the text of the SLAPP Bill, further to those amendments adopted at Committee Stage on 8 May 2024.
New clause 1 – ‘Purpose and Interpretation’:
- The purpose of this law is to protect and promote the ability of individuals and organisations to participate in public debate, advance accountability, and speak out on matters of public interest, and to prevent the use of the courts to undermine these rights through abusive legal action.
- Provisions in this Act should be broadly construed and applied to advance the purpose defined in subsection (1)
Meaning of “SLAPP” claim
(1) (c) Any of the behaviour of the claimant, including leading up to or alongside the claim, in relation to the matters complained of in the claim is such that it is reasonable to conclude that the behaviour is intended to cause the defendant any other harm or inconvenience beyond that ordinarily encountered in the course of properly conducted litigation
In subsection (1)(c) the reference to “harm” includes (but is not limited to) a reference to any of the following –
(a) expense;
(b) harassment;
(c) alarm;
(d) distress.
(4) In determining whether any behaviour of the claimant falls within subsection (1)(c), the court may, in particular, take into account—
(a) whether the behaviour is a disproportionate reaction to the matters complained of in the claim, including whether the costs incurred by the claimant are out of proportion to the remedy sought;
(b) whether the defendant has access to fewer resources with which to defend the claim than another person against whom the claimant could have brought (but did not bring) proceedings in relation to the matters complained of in the claim;
(c) The use of dilatory strategies strategies, excessive disclosure requests, disproportionate or unreasonable pre-action threats, or any refusal without reasonable excuse to resolve the claim through alternative dispute resolution;
(d) The choice of jurisdiction
(e) The use of public relations campaigns to bully, discredit or intimidate the defendant;
(f) any relevant failure, or anticipated failure, by the claimant (or a person acting on behalf of a claimant) to comply with a pre-action protocol, rule of court or practice direction, or to comply with or follow a rule or recommendation of a professional regulatory body.
