What is Wayne David’s SLAPP Bill and why is it important?

Dr Huw Evans, academic lawyer, Cardiff Metropolitan University

The Strategic Litigation Against Public Participation Bill (SLAPP Bill) is currently before the UK Parliament. Although a private member’s bill (Wayne David, Labour MP for Caerphilly, is its sponsor), it has UK Government support so is likely to become law.

The SLAPP Bill sets out to challenge so-called SLAPP behaviour (explained below). It is a welcome attempt to further the cause of investigative journalists, whistleblowers and more vulnerable people such as the survivors of abuse. The article considers the SLAPP Bill.

What is SLAPP?

SLAPP behaviour involves misuse of litigation (or its threat) by someone (C) which is designed to prevent publication of information by someone else (D) where that information is in the public interest and C’s claim is without merit. This might relate, for example, to economic or sexual crime and has been termed strategic litigation against public participation (SLAPP).

Where there is SLAPP behaviour, there is, typically, an imbalance of power between C and D in C’s favour, and C uses that power to try and silence D. Associated tactics include aggressive pre-action correspondence, making multiple claims to maximise D’s inconvenience, getting D to incur unnecessary expense, and targeting D in a personal capacity (rather than against a (resourced) organisation).

SLAPP claims are often a claim by C that D has defamed C (i.e., causing, or likely to cause, serious damage to C’s reputation) but a SLAPP claim could arise in other areas such as privacy or data protection.

The concern about SLAPP behaviour is its chilling nature, and the corrosive effect on the rule of law if wrongdoing is not exposed.

SLAPP Bill

Clause 2 of the SLAPP Bill sets out three things to constitute SLAPP behaviour:

1. C’s behaviour has, or is intended to have, the effect of restraining D’s right to freedom of speech (Limb 1).
2. Information that is, or would be, disclosed by D is in the public interest (Limb 2).
3. Any of C’s behaviour is intended to cause D harassment, alarm or distress, expense, or other harm or inconvenience beyond that ordinarily encountered in properly conducted litigation (Limb 3).

One concern raised at Second Reading related to the subjective aspects of the definition (see Limbs 1 and 3). In Limb 3, for example, it must be proved that C had the intention to cause harassment etc. This might be setting the evidential bar too high. A fairer way might be to set an objective standard (e.g., a court must consider the likely effect of the behaviour on the ‘reasonable person’).

Clause 1 of the SLAPP Bill requires court rules (the rules) to be made to ensure that where a court determines that a claim is a SLAPP claim (a SLAPP determination) it may be struck out before trial if C has failed to show that it is more likely than not C’s claim would succeed.

The rules must also ensure that where a SLAPP determination is made, an order for D to pay C’s costs must not be made except where there was misconduct by D; this is irrespective of whether the SLAPP claim is dismissed, or it goes to trial.

Additionally, the rules must allow for a SLAPP determination to be made on the initiative of a court (i.e., it is not dependent on D making a request).

The intention is that C will be deterred from bringing a SLAPP claim, and D will feel more empowered to expose wrongdoing.

The SLAPP Bill is framework legislation as implementation is dependent on the rules being made through secondary legislation.

Note that sections 194 and 195 of the Economic Crime and Corporate Transparency Act 2023 set out similar legislation for SLAPP claims concerning economic crime.  That Act received Royal Assent in October 2023 and no equivalent rules have yet been made. The SLAPP Bill will replace sections 194 and 195 and apply to all types of SLAPP behaviour (e.g., sexual crime).

Examples of SLAPP claims

In Kelly v O’Doherty the Northern Ireland High Court dismissed a defamation claim brought by Sinn Féin MLA member, Gerard Kelly, against journalist, Malachi O’Doherty, for stating that Kelly had shot a prison officer in 1983. The court judgment described the claim as ‘scandalous, frivolous and vexatious’ and that the proceedings: [bore] the hallmarks of a SLAPP and [were] initiated not for the genuine purposes of vindicating a reputation injured by defamatory statements, but rather for the purpose of stifling the voices of Mr Kelly’s troublesome critics.

In Amersi v Leslie the High Court dismissed a defamation claim brought by businessman, Mohamed Amersi, against former Conservative MP, Charlotte Leslie, as the claim showed no cause of action (i.e., it lacked merit). The court judgment said that the claim: [gave[ real cause for concern as to whether… [Amersi’s] pursuit of [the] proceedings [had] been genuinely to seek vindication rather than some impermissible collateral purpose(s).

In other words, there was concern that the claim had the hallmarks of a SLAPP claim.

SLAPP claims can arise in any context where there is a significant power imbalance. The two contexts above are quite different. SLAPP claims have arisen where journalists have tried to investigate Russian ‘oligarch’ affairs. SLAPP claims can arise from abuse  in a work context (à la Harvey Weinstein) or in a domestic context on the break-up of a relationship.

Other things

The effectiveness of the enacted legislation must be assessed in practice: for example, concerning the subjective aspects of the SLAPP definition if they remain (Limbs 1 and 3).

Another area might be concerning interpretation. For example, for a SLAPP claim determination to be made, D’s freedom of speech must relate to something in the public interest (Limb 2). If ‘public interest’ is interpreted narrowly, the legislation’s effectiveness could be undermined.

The adequacy of the rules made to give effect to the legislation must also be assessed.

Broader, more holistic, questions must be asked concerning whether it does discourage SLAPP behaviour and provide a material advantage over existing mechanisms for stopping or preventing unmeritorious claims (such as striking out a claim for abuse of process).

The enacted legislation will not give unrestricted access for D to pursue public interest matters again C. ‘Normal’ hurdles associated with potential legal action will remain, especially if C is well-resourced. Those hurdles might be legal, economic or psychological.

For example, Banks v Cadwalladr probably involved all three hurdles. In that case Welsh investigative journalist, Carole Cadwalladr. was ordered by the Court of Appeal to pay Arron Banks’s legal costs amounting to around £1.2 million in a defamation action he brought. Cadwalladr had originally won the case, but Banks was partially successful on appeal.

The law of defamation is notoriously tricky: for example, for the defence of substantial truth to succeed, D must prove the truth of a defamatory statement, it isn’t for C to prove that the statement is untrue.

Professional regulation might seem less obviously relevant but legal claims (or their threat) in England and Wales normally involve solicitors. Solicitors can face sanctions for misconduct (including not being allowed to continue being a solicitor).

The Solicitors Regulation Authority has issued guidance concerning SLAPP behaviour warning solicitors about their professional obligations, and which includes: ‘[I]t is improper to bring cases or allegations without merit, or to do so in an oppressive, threatening or abusive manner.’  Solicitors have a duty to uphold the rule of law, which would include advising against (and not engaging in) SLAPP behaviour.

Challenging SLAPP behaviour must also be considered in a broader context including: nurturing a healthy media; promoting access to the law; making effective law; challenging conditions where significant imbalances of power can arise between people.

SLAPP and Wales

The SLAPP Bill is England and Wales legislation as justice is not devolved in Wales (Scotland and Northern Ireland can make their own SLAPP law as justice is devolved in those places). SLAPP behaviour can affect Wales regardless of devolutionary arrangements and the SLAPP Bill will be beneficial to the extent that it restricts SLAPP behaviour.

Devolution of justice would enable Wales to make its own SLAPP law and to make more structural arrangements for the justice system which could complement challenging SLAPP behaviour. For example, D might feel more empowered if access to justice was improved because the cost of litigation was affordable.

Wayne David’s legacy

Wayne David is retiring as an MP. The enacted legislation will be his legacy; it could be called ‘Wayne’s Law’.