Rishi Sunak’s government might not be around for much longer — but ministers seem determined to leave what many see as a freedom of speech legacy.
Last week the government backed a bill aimed at thwarting “corrupt elites” from making expensive spurious legal claims to intimidate and silence critics.
Strategic litigation against public participation — known as Slapps — is a tactic said to be used by oligarchs and other wealthy individuals as they invoke defamation and privacy law to stymie reporting of alleged wrongdoing.
Beefed-up measures to combat Slapps are in a private member’s bill put forward by Wayne David, the MP for Caerphilly, and will allow independent judges to dismiss spurious claims before they go to trial and protect defendants from paying exorbitant costs.
On Friday ministers said that they would back the Labour MP’s Strategic Litigation Against Public Participation Bill, which also includes measures to award compensation to those who are determined to have been unfairly targeted by Slapps.
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Officials at the Ministry of Justice said that the bill would update the measures in the Economic Crime and Corporate Transparency Act 2023 to cover a broader scope of Slapps across all types of litigation, including sexual harassment.
The issue has risen to public prominence over the past few years. In 2021 HarperCollins, the publishing company owned by News Corp, the parent company of News UK, which owns The Times, and the author Catherine Belton settled an expensive claim by Roman Abramovich, after her book, Putin’s People: How the KGB Took Back Russia and Then Took On the West, included claims that he purchased Chelsea Football Club in 2003 at the Russian president’s command.
Government backing for David’s bill came after ministers had already moved to tighten the law on Slapps that relate to allegations of economic crime. But David, a former minister in Gordon Brown’s government, argued that those measures were not sufficient and that his bill would “protect freedom of expression for everyone”.
He told The Times that he was pleased that the bill received cross-party support, adding: “There is a wide recognition that Slapps need to be stopped. It is so wrong that corrupt and rich elites are abusing our legal system. Journalists, investigators and ordinary members of the public should not be intimidated and saddled with excessive costs simply because they are trying to get justice and fairness, and exercising their right to freedom of speech.”
In parliament David noted that not all Slapp claims involved household-name litigants. The MP said that he had been told of “patients who have left negative reviews for botched plastic surgeries being issued with Slapp claims by the surgeons. I’ve heard of tenants who have spoken out about their inhabitable housing being issued with Slapp claims by their landlords. This is wrong and this must be stopped.”
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Giving government backing to David’s bill, Alex Chalk KC, the justice secretary, said: “Free speech and the free press are linchpins of our democracy, and to muzzle people in this way is chilling. We want people to feel confident standing up to the corrupt, knowing the law is firmly on their side.”
However, senior lawyers warned that the bill would require “significant modification” to achieve its aims.
The Law Society, the body that represents solicitors in England and Wales, cautioned against measures “that may increase ambiguity and the risk of satellite litigation” — in other words creating a situation where subsidiary law suits spring from a main legal action.
The society also called for the legislation to include “an objective test” to define Slapps as well as a redrafting of the legal definition of what was in the “public interest”.
The private member’s bill received an unopposed second reading and will progress for further parliamentary scrutiny.
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Lawyers who act for wealthy claimants were sceptical. Gideon Benaim, a partner at the law firm Simkins, said: “While the draft bill was likely well meant, if it becomes the law without substantial changes it will likely make matters worse.”
According to Benaim, the bill’s drafting “needs to make crystal clear that its principal aim is to protect journalism on matters of major public interest from abuse by the super-rich trying to hide wrongdoing. Currently, just about any claim about any publication could be falsely regarded as a Slapp. It risks preventing legitimate claims and failing victims of press intrusion.”
Lawyers who represent publishers have warned that the legislation will merely prompt previously aggressive law firms to behave marginally better by writing fewer letters and generally toning down their rhetoric. However, it is forecast that their aim will remain the same — to use their wealth to silence critics.
Gavin Millar KC, a media law expert, said: “The reason that Slapps work for the claimants and their lawyers is that costs of defending free speech cases are huge. There is no real control over these in our litigation system.”
Millar said that, as a result, “the imbalance of wealth that exists in most Slapp cases between the wealthy claimant and the defendant means that simply defending even a properly conducted claim is impossible. The defendant is forced by the high costs and the imbalance of resources to settle post-publication cases.”
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Millar said that multiple governments had “shied away from tackling this problem about how expensive High Court proceedings are — and it means these reforms will not really tackle the problem of Slapps. Much more needs to be done to protect small public interest publishers and campaigners.”
