Strategic lawsuits against public participation: consultation

Chapter Two - Other Jurisdictions

2.1 As mentioned in the introduction to this consultation there has been activity and developments, some of it very recent, across a range of other jurisdictions in respect of SLAPPs. This chapter sets out some of these developments as they may provide a useful benchmark or framework for consideration of the need to reform Scots law.

England and Wales

2.2 The Ministry of Justice (MoJ) issued a call for evidence on SLAPPs on 17 March 2022 inviting evidence about the challenges presented by the increasing use of SLAPPs in England and Wales and seeking views on reforms to address the problems arising from SLAPPs.^[25] In its response to the call for evidence, the MoJ concluded that whilst there were diverse views on SLAPPs – dependant upon broadly whether the respondent was in the pursuer or defender camp – on balance there was a case for legislative “reforms which address the particular challenges of SLAPPs”.^[26]

2.3 As a consequence, the UK Government introduced anti-SLAPP amendments to what is now the Economic Crime and Corporate Transparency Act 2023 (“the 2023 Act”). In the context of economic crime only, the 2023 Act includes a definition of SLAPPs and sets out the mandatory requirements for Civil Procedure Rules (CPR) to tackle SLAPPs, which includes an early dismissal test and a duty placed on the CPR Committee to make rules limiting the costs for defenders. The amendments were broadly welcomed but were criticised by some for their limited scope.^[27] These provisions apply to England and Wales only.

2.4 Subsequent to this, the then UK Government lent its support to a Private Members Bill which sought to extend the SLAPP provisions of the 2023 Act to any circumstances in which a SLAPP may arise, not only those involving economic crime. The Bill fell as a result of the prorogation of the UK Parliament following the announcement of a General Election in 2024 and the UK Government has stated that it does not intend to legislate further in the current parliamentary session against SLAPPs.^[28]

Northern Ireland

2.5 In 2023, the Northern Ireland Executive’s Department of Finance published a paper, “Review of Defamation Law in Northern Ireland – Engaging with Stakeholders”.^[29] It was part of a review being undertaken into the Defamation Act (Northern Ireland) 2022 (“the 2022 Act”) and was intended as a targeted engagement with local stakeholders. The paper recognised that the 2022 Act did not address SLAPPs and the opportunity was taken to include some questions on this issue in the context of defamation law, in particular whether anti-SLAPP legislation would reduce the chilling effect of defamation law.

2.6 The outcome of the review,^[30] which was published in June 2024, is that the Executive acknowledges that legislation on SLAPPs may require closer inspection. The Department of Finance will continue to monitor developments in the Republic of Ireland and England and Wales and will work across departments to see how the issue can be addressed.

Republic of Ireland

2.7 The Defamation (Amendment) Bill was published on 2 August 2024^[31] and includes anti-SLAPP measures which are limited to defamation actions. Following the dissolution of the government on 8 November 2024, the Bill has now lapsed. As a Member State of the European Union, the Republic of Ireland is obligated to transpose the EU Directive by 2026 (see below).

Europe

2.8 On 27 April 2024, co-legislators of the European Union (“EU”) adopted Directive (EU) 2024/1069^[32] (“the Directive”) which provides safeguards against manifestly unfounded claims or abusive court proceedings (or SLAPPs) in civil matters with cross-border implications brought against persons on account of their engagement in public participation.

2.9 The Directive sets out minimum common standards (Article 3) and applies to matters of a civil or commercial nature with cross-border implications. Member States are encouraged to be ambitious in their transposition of the law and to exceed the minimum common standards, for example by extending those safeguards to purely domestic cases.^[33]

2.10 The Scottish Government has a policy of seeking to align with the EU’s approach to legislation and policy where appropriate so as to maintain and advance standards, ease market access and facilitate re-accession.

2.11 Separately, the Council of Europe made a non-binding recommendation^[34] on countering the use of SLAPPs which was adopted by the Committee of Ministers on 5 April 2024. The UK was a member of the Council of Europe’s inaugural working group on SLAPPs. In terms of a legal framework for SLAPPs, the Council of Europe echoes other jurisdiction’s frameworks, but goes beyond the minimum common standards set out in the Directive.^[35]

Beyond Europe

2.12 In the United States, 33 states have statutory protections against SLAPPs in place. There is, though, no consistency in the approaches taken across individual states and the protections vary from state to state.

2.13 Anti-SLAPP legislation has been enacted in British Columbia, Quebec and Ontario. The Ontario Protection of Public Participation Act 2015 is often cited by campaigners as a piece of effective legislation which put in place: a fast-track mechanism to identify whether a lawsuit is strategic or legitimate; protections to third parties from liability; processes for controlling costs. In an opinion piece^[36] written early in 2024 the view was expressed that a decade on, the legislation is working by enabling people to engage in robust public debates without having to fear lengthy and costly defamation actions from people with deep pockets.

2.14 The Australian Capital Territory has in place the Protection of Public Participation Act 2008 although it has been criticised for, amongst other things, not providing for an early dismissal procedure (which leaves the courts unable to respond immediately to a SLAPP).^[37]

2.15 In Sout-East Asia, limited anti-SLAPP legislation has been adopted in three countries – Indonesia, the Philippines and Thailand. In Indonesia and the Philippines, such legislation is restricted to environmental cases while Thailand’s legislation is restricted to criminal proceedings.

Question 5: Should anti-SLAPP legislation be introduced in Scotland? Please provide reasons for your view.

Question 6: Do you have any views or evidence on whether any of the measures in other jurisdictions are working effectively? Please provide evidence or reasons for your view.

Question 7: Do you have any views on the applicability or otherwise of approaches in other jurisdictions to Scotland and our legal system? Please provide reasons for your view.