What is a SLAPP?
Put simply a Strategic Lawsuit Against Public Participation, or a SLAPP is:
“an abusive lawsuit filed by a private party with the purpose of silencing critical speech.”
SLAPPS exploit the law in order to covertly, yet aggressively, intimidate public watchdogs into self-censorship. Research by the Foreign Policy Centre and other members of the UK Anti-SLAPP Coalition has found that SLAPPs are on the rise and that the UK is the number one originator of abusive legal actions. In fact, the UK has been identified as the leading source of SLAPPs, almost as frequent a source as all European Union countries and the United States combined
While SLAPPs tend to lack legal merit and usually end up being dismissed once the facts of the case have been presented in court, this is not the point. The amount of time, energy, and money involved in even getting before a judge is vast and can be prohibitive, especially in cases where an individual (as opposed to an organisation) has to foot the bill for their own legal defence.
The reality is most SLAPPs never make it to court – either by design as the claimant will use every opportunity to drag out proceedings to increase the cost and impact of the SLAPP, or by the target of the SLAPPs stepping back to avoid the ever-escalating financial burden. Just the threat of a SLAPP can be intimidating enough for someone to feel that they should discontinue their research or reporting, or to remove their report from circulation if it has already been published. This is true even though the information is in the public interest and the person can prove that it is accurate.
What actions constitute a SLAPP?
SLAPPs take many forms. While the most commonly deployed cause of action in the UK is currently civil defamation, it is not the only one. In fact, increasingly we are seeing characteristics of SLAPPs in privacy, data protection and harassment actions aimed at those speaking out in the public interest.
So if the cause of action doesn’t make a legal threat a SLAPP, what does? SLAPPs are a tactic deployed to dissuade public participation so they target the public watchdog’s ability and energy to fund, participate in and engage with legal threats.
SLAPP claimants will often:
- Drag out proceedings before a threat makes it to court to drain the time, money and energy of SLAPP targets and require them to secure legal representation;
- Over-emphasize the impact or damage of the complained about content to justify an aggressive litigation strategy and inflate the amount claimed in damages;
- Target individuals instead of the organisation behind the complained of statement in an attempt to isolate them or cut off institutional support;
- Make excessive disclosure requests to monopolise the target’s time and distract them from their work; or
- Refuse good-faith options to resolve the situation swiftly and without the need for costly legal proceedings.
This is a non-exhaustive list but shows some of the tactics used by SLAPP claimants. The Model Anti-SLAPP Law, drafted by the coalition and leading legal and industry experts, identifies a number of characteristics that could suggest a SLAPP.