Frequently Asked Questions

Please find below a number of Frequently Asked Questions about SLAPPs, what an Anti-SLAPP Law should do, what impact SLAPPs have on public watchdogs in the UK and why we need to stamp them out. It also includes key questions about the Strategic Litigation Against Public Participation Bill which is currently being scrutinised by Parliament.

Are SLAPPs a significant problem that requires legislation?

Yes. SLAPPs – even those that do not make it beyond a threat – exert a significant impact on everyone’s fundamental freedoms and ability to participate in society around them. This problem is further compounded by the fact that many SLAPP suits or threats go unreported and take place through pre-litigation tactics that result in silencing speakers so that their investigations never see the light of day. There are other reasons why SLAPPs may go unreported: SLAPP targets may fear that they will compound legal problems if they speak out or may worry that their work or reputation will be discredited if they make their legal problems public. It may also be that civil litigation is not considered newsworthy enough for media bodies to publish stories on them, or that aggressive SLAPP tactics are so normalised that people do not even consider it a problem. The UK Anti-SLAPP Coalition has highlighted a number of cases here

There is nothing in existing law that can protect those targeted by SLAPPs, including those threats that never make it to court. The only way this can be addressed in totality is anti-SLAPP legislation, alongside developments in terms of regulation and culture change. The law, as it stands, is so stacked in favour of SLAPP claimants that journalists, campaigners, whistleblowers, sexual abuse survivors, online reviewers, facebook group members and many others often have no choice but to give into claimant’s demands rather than fight a legal case. 

Are SLAPPs just a new name for what we used to call libel suits?

No. Defamation actions are not necessarily SLAPPs and SLAPPs are not necessarily defamation actions.

Defamation law is a vital part of the legal environment and speaks to the balancing of rights between the right to free expression and the right to privacy and a family life. SLAPPs are not one cause of action, they are the abuse through the litigation process, with claimants using whatever law they can to silence their critics. Examples of SLAPPs from the UK and Europe show a myriad of laws, such as defamation, privacy, data protection and GDPR, harassment, copyright and trespass as potential vehicles of SLAPPs. SLAPPs are defined by the abuse of the legal system where the objective is not the vindication of rights but the withdrawal of public interest speech.

Will access to justice be impeded by the introduction of the SLAPP Bill?

No. In fact it is the opposite. In many ways, anti-SLAPP laws work to promote access to justice by ensuring that SLAPP defendants are not squeezed out of the system by astronomical costs. This is why the Canadian legal scholar Hillary Young has pointed to anti-SLAPP laws as a means of improving access to justice in defamation cases, saying that the “enactment of anti-SLAPP laws has almost certainly improved access to justice for defamation defendants.”

In any event, abusive lawsuits have no place in a democratic judicial system. There is no right to file an abusive lawsuit. SLAPPs are by definition abusive and there is nothing therefore inconsistent with the right to a fair trial for such lawsuits to be disposed of early. Indeed, mechanisms generally already exist to filter abusive cases out of court – they’re just inadequate to deal with the particular problem of SLAPPs. Further to this, the case of Steel and Morris v UK made it unambiguously clear as to how much of a threat SLAPPs can be to access to justice. The Court held that unavailability of legal aid violated applicants’ rights under Article 6 and noted also that the lengthy proceedings and their outcome infringed rights under Article 10.

Is the SLAPP Bill nothing more than a licence to defame?

No. Under the Bill, even if a case has all the hallmarks of a SLAPP, a Judge must still allow a case to proceed if it is more likely than not to succeed at trial. Given that this merits test is only applied if the defendant has cleared three separate threshold tests (in Clauses 2(1)(a) to (c) respectively),  all but the most egregious SLAPP cases will in practice be allowed to go to trial. However, robust anti-SLAPP protections can improve standards, while also establishing and formalising transparent protocols for rules for civil procedure (required in Clause 1 of the Bill), a process that is too often removed from all public scrutiny or accountability. This will benefit all parties. In this manner, the Bill can ensure that court cases are dealt with in a fair and time- and cost-effective manner. In any event, no one should deploy tactics in court that are abusive and affect the ability of the defendant to mount a defence. 

Won’t the SLAPP Bill be used by defendants all the time, not just to strike out the claims of the few bad apples who bring SLAPP cases?

No. The Strategic Litigation Against Public Participation Bill (SLAPP Bill), which is currently being scrutinised by Parliament sets out categories of behaviour that indicate the behaviour of a SLAPP claimant – for example, whether the defendant has access to fewer resources than the claimant, or whether the claimant is incurring costs that are out of proportion to the remedy sought. It is simply not credible to argue that the Bill could therefore impede the ability of a normal person to bring a case to protect their reputation. The Bill includes a process by which a SLAPP is identified and properly established, this would prevent the protections being brought to bear on non-SLAPP legal actions.

Shouldn’t a claimant’s intent be central to identifying a SLAPP?

Intent is important but so is the impact of their actions. The amendments to the SLAPP Bill that the Coalition proposed sought to make sure that a Judge would be able to make a reasonable inference of a claimant’s intent based on their actions, rather than having to make an inquiry into their precise state of mind. Proving intent is a notoriously difficult and costly task which – in the likely absence of any explicit statement of intent (at least any not subject to privilege) – requires the court to infer the state of mind of the filer. Anti-SLAPP measures should not add to the time, cost or complexity of any court proceedings and the amendment avoids placing the threshold at what SLAPP claimants are supposedly thinking rather than what they are doing and the impact of their actions. The Bill Committee thought so too – amendments to replace the subjective test with the objective test were accepted into the latest draft of the Bill.

No one likes receiving a legal letter. Wouldn’t the SLAPP Bill, which allows courts to rule a case is a SLAPP if the legal action is intended to cause harm or inconvenience beyond that encountered in the course of properly conducted litigation, hamper legitimate legal actions?

No. Put simply, while we accept receiving a legal letter can be stressful and time-consuming, no legitimate case should be brought with the intention of harassing the defendant. It is also important to state that in the SLAPP Bill, this is only one of three steps in the Bill’s test to identify a SLAPP to see whether it can be dismissed at an earlier stage, i.e. before legal costs have accrued. So this threshold cannot unilaterally be used to discard actions. 

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. This would be an alarming indictment of the British justice system if this was the case. 

This issue does not stop and start with the courtroom. Sir David Davis MP attempted to bring an amendment to ensure harm perpetuated against SLAPP targets outside the courtroom or before the case is filed is brought within the focus of the Bill. The Government did not support the amendment but has pledged to explore the issue prior to the next parliamentary stage. 

Isn’t it unfair that a court cannot award a SLAPP claimant with costs if they win at trial, unless the defendant’s conduct justifies it?

No. In fact, the current system bakes in the inequality of arms where wealthy claimants are able to threaten costly court actions knowing the target may not be able to afford to mount a defence. If defendants that act in a proper way are not protected from paying the costs of SLAPP claimants, they will be extremely reluctant to ever go to trial and defend themselves due to the threat of financial hardship. 

In the current system, individuals defending themselves have been threatened by bankruptcy and even losing their home by spending the money to put forward a defence in court. This will defeat the object of the SLAPP Bill, by leaving those targeted by SLAPPs with little choice but to give into a claimant’s demands before a case ever gets to court. The financial uncertainty creates too much of a deterrent. International human rights standards, which the UK has signed up to, stipulate that everyone has the right to a fair trial and this includes defendants in SLAPP actions. Protections that discard abusive cases while also capping costs allowing defendants to mount a defence in court are important provisions that move the UK closer to realising these human rights obligations.

If the SLAPP Bill deviates from the established approach in the ECCTA wouldn’t that establish different tests and confuse matters?

No, This is not the case. At the time of writing, the Economic Crime and Corporate Transparency Act (ECCTA) anti-SLAPP provisions have not been implemented. More importantly, Clause 3(2) of the SLAPP Bill repeals the ECCTA’s anti-SLAPP provisions in their entirety. This means there is no danger of inconsistency between two competing anti-SLAPP frameworks, because there will only be one framework in effect. Therefore, there is no sound reason for the Government to refuse to make the Bill effective on the basis that this will mean deviation from the ECCTA.

You cannot deviate from legal standards that no longer exist.

Is the SLAPP Bill an attack on the legal system and courts?

Absolutely not. The UK Anti-SLAPP Coalition has long backed robust and universal protections against SLAPPs to ensure British courts cannot be abused by those trying to stifle protected speech. Currently courts and judges do not have the necessary tools to protect the British legal system. The SLAPP Bill seeks to address this.  

SLAPPs have done significant damage to the international standing of British courts. When the US passed the SPEECH Act, which made foreign libel judgments unenforceable in US courts, unless either the relevant foreign legislation offers at least as much protection as the First Amendment or the defendant would have been found liable under US law, cases brought in the UK, such as the action against Dr Rachel Ehrenfeld by Sheikh Khalid bin Mahfouz in 2008, were prominently discussed in the US Congress. “England has become the favourite destination of libel tourists from around the world, especially wealthy tourists from countries whose own laws are downright hostile to free speech,” Congressman Steve Cohen said.

Is the SLAPP Bill a politically driven piece of legislation brought by the UK Government?

No. Broadly speaking, the UK Government is late to the party when it comes to addressing SLAPPs. It took the unlawful full-scale invasion of Ukraine by Russia and a public consultation for the UK Government to acknowledge what civil society, journalists and the legal profession have been saying for years – that the UK has a problem with SLAPPs that only legislation can fix. The SLAPP Bill has been brought by a member of the Labour Party (with Government support) and the Bill itself, as well as broader action against SLAPPs has cross-party support and has not become a party political issue at any point of its development.

There is no evidence that dealing with SLAPPs would give any party an advantage in the forthcoming General Election. The only political point is this: Everyone in England and Wales deserves the right to be able to access their fundamental rights, namely the right to free expression, free assembly and a fair trial.

Will the SLAPP Bill protect everyone in the UK?

No. The Bill that is currently going through UK Parliament, if enacted, would only protect public watchdogs in England and Wales, not those in Scotland or Northern Ireland. Authorities in Northern Ireland and Scotland would have to pass their own anti-SLAPP law or agree to a Legislative Consent Motion from the UK Parliament to establish a comparable anti-SLAPP Law. 

Neither Scotland nor Northern Ireland have existing anti-SLAPP protections. There is a petition (PE1975) currently in front of the Citizen Participation and Public Petitions Committee at Scottish Parliament exploring the issue of a Scottish Anti-SLAPP Law. On 24 April, the Minister for Victims and Community Safety confirmed that the Scottish Government is bringing forward a consultation on SLAPPs later in 2024. The Northern Irish Assembly is currently reviewing the 2022 Defamation (Northern Ireland) Act. As part of the public consultation, the Department of Finance asked a number of questions regarding possible anti-SLAPP protections.

Did the 2023 Solicitors Regulation Authority (SRA) thematic review of SLAPPs find no evidence of SLAPPs?

Not really. When the outcome of the review was published in February 2023, the SRA stated that they “did not find evidence of SLAPPs in our file reviews.” However, the SRA only visited 25 firms and crucially the review did not include firms who were currently being investigated for potentially playing a role in the perpetrating of SLAPPs. The SRA stated that “[g]iven the number of firms we saw and files we examined – alongside the fact we did not visit firms who are currently being investigated about this issue – our thematic review is a snapshot of the approach of a limited number of firms.” In the review, the SRA also confirmed that “[a]t the time of writing, we had around 40 open investigations into concerns around SLAPPs.” This would mean that the firms connected to those open investigations were not included in the review. This would affect whether their review contained any potential SLAPP enabling behaviour and how the review has been presented by opponents to reform.