Strategic lawsuits against public participation: consultation

Chapter One – Introduction and Background

1.1 In March 2022, the UK published an urgent call for evidence in response to the increasing awareness that the legal system is being used to suppress public participation on matters of public interest. Legal actions or threats of legal actions that have the aim or effect of suppressing public participation on matters of public interest are commonly referred to as “strategic lawsuits against public participation” or “SLAPPs”.

1.2 Responses to the call for evidence suggest that there are opposing views in relation to the issue.^[3] Legal respondents acting for pursuers suggested that SLAPPs did not exist or were not prevalent.^[4] They further suggested that measures aimed at preventing SLAPPs will inhibit access to justice^[5] and that existing legislative/ procedural mechanisms provide sufficient protection.

1.3 On the other hand, media organisations, individual journalists, civil society actors and legal respondents acting for defenders provided robust evidence of an increase in SLAPP-behaviour being used by wealthy and influential individuals and corporations to intimidate and silence those speaking out on public interest issues.^[6] This includes pre-action letters issued by law firms containing aggressive and intimidatory language alongside judicial proceedings. These respondents further spoke of the psychological and financial cost of responding to or defending against SLAPPs, and the accompanying chilling effect on public interest matters that results from the threat of these costs.^[7]

1.4 Over 30 US states, 3 Canadian provinces and Australia’s Capital Territory all have legislation in place to address the use of SLAPPs.^[8] More recently, in April 2024, the European Union (EU) passed an EU-wide directive to provide minimum standards for protecting persons who engage in public participation from manifestly unfounded claims or abusive court proceedings in cross-border civil and commercial cases.^[9] In the same month, the Council of Europe adopted a recommendation on countering the use of SLAPPs.^[10]

1.5 The activity and developments across a range of other jurisdictions points to SLAPPs being a recognised issue which needs to be addressed while taking care to minimise the risk of anti-SLAPP measures being misused for the purposes of preventing a party from accessing justice where the claim relates to a genuine legal dispute, such as where false and defamatory allegations have been made against them).

What are SLAPPs?

1.6 SLAPPs are not a new phenomenon, the acronym was first used in the United States in the 1980s to describe the misuse of civil actions to stifle political expression.^[11] While there is no single definition of a SLAPP, for the purposes of this consultation, SLAPPs are lawsuits or threats of legal action that engage abusive litigation tactics in proceedings which concern public participation on matters of public interest. Abusive litigation tactics take many forms, including making exaggerated or unfounded claims for damages, amending or withdrawing claims or pleadings, exploiting appeals procedures, or initiating multiple proceedings (sometimes in multiple jurisdictions).

1.7 SLAPPs target a wide range of civil society actors including journalists, academics, environmental defenders, and authors. They also occur across the spectrum of legal actions, including, for example, proceedings in defamation, trespass, copyright infringement, and data protection.

1.8 From the point of view of the individual threatened, the prospect of defending a SLAPP in terms of costs, time and other resources^[12] might result in the expression never being published. This is of particular concern where the expression is a matter of public interest as the ease of raising, or even of threatening to raise, civil proceedings could result in our justice system being used strategically to silence legitimate criticism.

1.9 Often, a SLAPP is brought by individuals or organisations including large corporations, with access to large amounts of finance or funding. This imbalance of power can be intimidating in and of itself. When threats are made in this context, SLAPPs can be seen as a cynical tactic or strategy in so far as those who raise them might do so in the knowledge that they are very unlikely to succeed in their lawsuit. The intention is to draw out legal proceedings and exhaust the defender’s financial and psychological resources or divert their resources away from participating in public interest matters.

1.10 The effects of a SLAPP do not stop when the defender’s participation is prevented. There is a ripple effect, in so far as the existence of SLAPPs can negatively impact how likely others are to participate on public interest matters relating to that individual or organisation in the future. In other words, SLAPPs have a chilling effect that can stifle freedom of expression on matters of public interest. Consequently, a range of civil society actors need to weigh the potential risks of a SLAPP before deciding whether to speak about a particular individual/organisation.

The prevalence of SLAPPs

1.11 There is very little available data on the number of SLAPPs in Scotland or indeed the UK. One source comes from the Foreign Policy Centre^[13] which has published a report jointly with Article 19^[14] into SLAPPs originating in the United Kingdom, and in particular London.^[15] The report references over 30 cases which it considers to be SLAPPs.^[16] Around half resulted in litigation, and cover a range (or a combination) of different types of action – including defamation, data protection, harassment, privacy, etc. Predominantly, those on the receiving end of a SLAPP were investigative journalists, often investigating some form of corruption. As one of the journalists said in the aftermath of their case: -

“Over the last 18 months, I have lived the increasingly too-common life of an investigative journalist who splits his time between researching and writing articles and tending to a lawsuit.”^[17]

A balanced approach

1.12 Whilst we need to prevent our justice system from being abused by individuals and corporations pursuing baseless claims we need to balance this with ensuring access to justice in legitimate cases is maintained. Any reforms that are taken forward to address the use of SLAPPs must be carefully balanced so that other rights are properly protected too, including the right to access justice and the right to privacy and protecting one’s reputation. In this regard, it is worth noting that the European Court of Human Rights (ECtHR) has consistently held that the right to access justice is not absolute and national courts may establish proportionate procedural restrictions if they pursue a legitimate aim and do not violate the very essence of the right of access to justice.^[18] The ECtHR has further confirmed that an exercise of freedom of expression which amounts to a debate of public relevance may be capable of prevailing over the right to reputation^[19] as public interest speech attracts a high-level of protection.^[20]

Evidence of SLAPPs in Scotland

1.13 SLAPPs are frequently compared to an iceberg: those cases which make it to court are identifiable and to some extent measurable but these represent only the ‘tip of the iceberg’. Far harder to measure, but considered to be more common, are the cases which result in some form of self-censorship and which do not reach the courts. As mentioned above, the purpose of SLAPPs is to suppress public interest information; therefore, where the SLAPP pursuer achieves their goal of silencing their target, the SLAPP itself will be rendered invisible.

1.14 There is generally very limited data about the use of SLAPPs in Scotland, although anecdotal evidence suggests that SLAPPs occur in Scotland in the same manner as they do in other jurisdictions which lack bespoke anti-SLAPP legislation.^[21] In 2021, Scottish PEN^[22] in partnership with the University of Strathclyde published the findings of a survey of 100 Scottish writers, editors and publishers about the effect of the law of defamation on their work.^[23] The majority of participants thought that perceived or actual threats of defamation proceedings were likely to have a ‘chilling effect’ on freedom of expression in Scotland.

1.15 A Scottish Anti-SLAPP Summit^[24] was held in Glasgow early in 2024, for journalists, lawyers and other experts to meet to learn more about the SLAPP landscape in Scotland and to identify gaps in Scots law. Two of the speakers talked about how they were targeted in Scotland, facing claims of defamation or interdict against their speech or actions.

Question 1: Have you been affected by SLAPPs in Scotland, either personally or in the course of your employment? If yes, please provide details.

Question 2: If you have experienced a SLAPP, how did the matter resolve (if it has resolved)?

Question 3: If you have experienced a SLAPP, what was the impact on you personally and/ or the work you were undertaking at the time?

Question 4: Are you aware of, or have you acted on behalf of, an individual or organisation who has benefited financially from bringing a SLAPP? If so, in what way did they benefit financially?