Strategic lawsuits against public participation: consultation
A consultation which invites consultees to offer views on their experience of strategic lawsuits against public participation and the potential for reform of the law in Scotland.
Footnotes
1 The Official Report of the meeting.
2 The petition calling for an urgent review of the law with a view to preventing the use of SLAPPs.
3 The UK Government’s analysis of the responses.
4 See, for instance, paragraph 2 of the UK Government’s analysis of responses.
5 For example, a central feature of anti-SLAPP legislation in other jurisdictions is an early dismissal mechanism which allows a court to dismiss proceedings in circumstances where a pursuer cannot prove at an early stage that they are likely to succeed in litigation.
6 The UK Government’s analysis of the responses, see paragraph 8.
7 The UK Government’s analysis of the responses, see paragraph 9.
8 More information on anti-SLAPP initiatives in other jurisdictions can be found at pages 80 – 83 of the Foreign Policy Centre’s report.
10 The Council of Europe recommendation.
11 Pring, George W. and Canan, Penelope (1996). SLAPPs: Getting Sued for Speaking Out. Temple University Press. pp. 8–9.
12 For example, the impact on mental health of having to deal with a legal threat.
13 The Foreign Policy Centre is an independent, non-partisan international affairs think tank based in the United Kingdom.
14 Article 19 is an international organisation whose work seeks to uphold, protect, and extend worldwide the right to freedom of opinion and expression.
15 The Foreign Policy Centre and Article 19 report.
16 A list of UK SLAPP cases from the report.
17 Scott Stedman – founder of Forensic News an investigative news site. - Helsinki Commission, Helsinki Committee session on ‘Countering Oligarchs, Enablers, and Lawfare’, YouTube, April 2022.
18 H v The United Kingdom (App. No.11559/85) at 284–285.
19 Couderac and Hachette Filipacchi Associés v France (App No. 40454/07).
20 This protection has been extended to media actors, human rights defenders, academics, NGOs, and whistle-blowers. See Stoll v Switzerland (App. No. 69698/01) at 102.
21 We are aware of ongoing research being undertaken by the Anti-SLAPP Research Hub (“the Hub”). The Hub is a collective of academics, lawyers, journalists, and public policy experts committed to combatting SLAPPs. In December 2023 the Hub published a call for participants to take part in a survey on SLAPPs in Scotland to collect information on the level and types of legal risk associated with Scotland to collect information on the level and types of legal risk associated with engaging in civil society or public watchdog activities in Scotland. No findings are yet available.
22 Scottish PEN is the Scottish branch of PEN International campaigning for freedom of expression, oppressed writers, and marginalised linguistic groups.
23 Survey of 100 Scottish writers, editors and publishers about the effect of the law of defamation.
24 The summit was organised by Index on Censorship and the University of Glasgow and was held on 26 February 2024. The programme of the summit.
25 The MoJ’s Call for Evidence. 120 responses were received.
26 The MoJ’s Response to the Call for Evidence.
27 See page 9 of the House of Commons Library Research Briefing on SLAPPs for further detail.
28 See page 12 of the UK Government’s response to the House of Lords Communications and Digital Committee report on ‘The future of news’.
29 The Northern Ireland review of defamation law.
30 The outcome of Northern Ireland’s review of defamation law.
31 The Republic of Ireland’s Defamation (Amendment) Bill 2024.
32 The Directive on SLAPPs was published in Official Journal on 16 April 2024. EU Member States have until 7 May 2026 to comply with the directive.
33 The text also covers non-legislative aspects related to the training of legal professionals and potential targets to improve their knowledge and skills to effectively deal with SLAPPs, awareness raising in particular aimed at enabling journalists and human rights defenders to recognize when they are facing a SLAPP, support to targets of SLAPPs and a more systematic monitoring and data collection.
34 Council of Europe Recommendation CM/Rec(2024)2.
35 For instance, with regard to an early dismissal mechanism, the Recommendation makes no distinction between whether proceedings are “manifestly unfounded” or “abusive” as the Directive does.
36 Opinion piece on the continued effectiveness of Ontario’s SLAPP.
37 Thalia Anthony (2009) Quantum of Strategic Litigation – Quashing Public Participation, Australian Journal of Human Rights 14(2).
38 Simple Procedure is a court process designed to provide a speedy, inexpensive and informal way to resolve disputes. More information on simple procedure.
39 Judicial review is a “remedy of last resort” where there isn’t a suitable statutory right of appeal and allows for review by the court of an administrative decision.
40 Section 100 of the Courts Reform (Scotland) Act 2014.
41 Rules for the Court of Session allows only a pursuer to motion the court for summary decree (see Rule 21(2)).
42 See, for instance, Bobby Lindsay, "The Reform of Defamation Law in Scotland" (2019) 23 Media and Arts Law Review 109, 111.
43 A bond of caution is issued by an authorised insurance company certifying that they will be able to make payment of the set sum in the event that an award of expenses is made against the party who has obtained the bond.
44 Section 726 of the Companies Act 1986.
45 The test is derived from the English case of R (Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192.
46 See Chapter 58A of the Court of Session rules.
47 A model law for Scotland has been drafted by Prof Justin Borg-Barthet and Dr Francesca Farrington, Anti-SLAPP Research Hub, University of Aberdeen and is set out in Appendix B. Comments were solicited from anti-SLAPP and Scots law experts, including Nik Williams (Scottish Anti-SLAPP Working Group, UK Anti-SLAPP Coalition & Index on Censorship), Charlie Holt (Coalition Against SLAPPs in Europe & UK Anti-SLAPP Coalition), Dirk Voorhoff (University of Ghent), Ricki-Lee Gerbrandt (University of Cambridge), Graeme Johnston (Scottish Anti-SLAPP Working Group), Ewan Kennedy (former Solicitor), Dr Erin Ferguson (University of Aberdeen), Prof Greg Gordon (University of Aberdeen), and Dr Jonathan Ainslie (University of Aberdeen).
48 Anti-SLAPP laws in Quebec and Ontario were particularly instructive for those drafting the Model law, both because of their objective qualities and due to legislative fit arising from shared legal culture.
49 The drafters of the Model law have sought to ensure that Scots law has sufficient safeguards to protect public participation, while preserving the right to access to justice as appropriate.
Contact
Email: SLAPPconsultation@gov.scot
There is a problem
Thanks for your feedback