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Explainer: SLAPPs & the impact of Government reform

 

'SLAPPs' have received a lot of attention in the industry press in recent months following the MOJ's launch of an inquiry and consultation looking at these cases, and more recently following the Government's announcement of a series of reforms that seek to prevent the rich and powerful from using exorbitant lawsuits to silence legitimate journalism. 

In this blog, IMPRESS Head of Regulation Lexie Kirkconnell-Kawana looks at SLAPPs, the impact of proposed Government reforms on the Royal-Charter system of approved regulation, as well as their potential impact on small, independent publishers. 


What are SLAPPs?

The Government recently announced a set of civil procedure reforms to tackle what it describes as SLAPPS or strategic lawsuits against public participation. Newly coined, SLAPPs describe the phenomenon of wealthy litigants using legal process to silence critics that seek to hold them to account. SLAPPs include the types of claims that newspapers and journalists face from powerful individuals and organisations, that do not want wrongdoing or corruption exposed. The Government has said that its reforms will enable the courts to dismiss lawsuits seeking to stifle free speech and crackdown on corrupt elites abusing the UK’s legal system.

What reform has the government announced?

The reforms announced by government are threefold:

  1. A new test that courts can apply to determine if a case is a SLAPP and should be thrown out;
  2. The ability for those defending a suspected SLAPP to apply to have the case thrown out; and
  3. A new costs protection scheme to level the playing field between wealthy claimants with deep pockets and defendants.

 

SLAPPs and existing protections under the Royal Charter system

If that last reform rings a bell, it is because this is not new territory for the Government. There is legislation already in place to protect investigative journalism from SLAPPs under the Royal Charter on self-regulation of the press. This includes a system of low-cost arbitration for regulated publishers underpinned by legal incentives found in the Crime and Courts Act 2013. As a member of a Charter-approved regulator, IMPRESS publishers can use the IMPRESS arbitration scheme to resolve legal disputes before they even get before a judge and without any of the exorbitant legal costs.

How do we know this? No IMPRESS-regulated publisher, in the five years of IMPRESS’ operation, has been required to defend a libel claim in court. All legal claims made against approved publishers have been referred to the IMPRESS arbitration scheme (of the 10 subsequent applications made to our arbitration scheme, three were accepted and ended up before an independent arbitrator). The average cost of participating in the scheme for publishers was less than £2,500 per claim defended. Many more pre-action tactics have been deterred by encouraging potential claimants to test their claims against the rigour of the self-regulatory processes and rules under our scheme.

Being a member of an approved regulatory body should provide publishers with significant legal protections against SLAPPs, but the current legal framework is unfortunately being undermined and dismantled in parallel with the Government’s SLAPPs inquiry and consultation. The Government has held firm to its commitment to repeal the Crime and Courts Act provisions that offer regulated publishers these protections. Section 36 protects well-regulated publishers from being exposed to exemplary damages. Section 40 protects well-regulated publishers by requiring litigants who wish to take legal action against a publisher to either use the regulator’s low-cost arbitration scheme or to risk paying both sides’ legal costs in taking the matter to court, regardless of the outcome of the case.

The effect of the repeal of these laws is that it will weaken the legal protections available to well-regulated publishers that protect them from the chilling effect of SLAPPs. Significantly, it will weaken protections for individual journalists and smaller publishers who are most at risk from exorbitant SLAPPs and who play a crucial role in the news ecosystem.

IMPRESS’s view

At IMPRESS, we know from our publishers that they often receive legal threats due to the nature of the journalism that they undertake, whether that be at a local or national level, or particular to their community or specialist subject area. The nature of independent journalism means that it is particularly at risk, as for the most part independent newsrooms do not have large legal departments to deal with such threats. Typically, these threats come from sources such as big business, oligarchs, foreign governments, national media companies, big tech, political groups, lobby groups and think tanks. Those fortunate enough to stave off SLAPPs, with well-resourced legal budgets at their disposal to deter such claims, are set to be the ones that stand to benefit most from this reform.

The new reforms require primary legislation, and the government has stated it will legislate at the earliest opportunity. We think these reforms take the wrong approach, and instead, policy interventions should focus more on protecting individual journalists and investigative journalism platforms that do not have the legal resources to defend SLAPP claims and who are therefore at greatest risk of being chilled by the powerful interests that they investigate.

The most efficient solution to the problem of SLAPPs is to review and build on systems of self-regulation of the press and low-cost arbitration that are already underpinned by law which are being held back by the current Government’s policy approach.

Key takeaways:

  • Government-proposed reforms seek to deter SLAPPs through civil procedure rules and cost provision reforms; this will likely only benefit well-resourced news groups with legal budgets who are already in a good position to stave off legal threats.
  • Membership of IMPRESS discourages the escalation of disputes into lengthy and costly legal battles includes several features that seek to support legitimate claims while deterring SLAPP threats. Our regulatory scheme protects publishers from the chilling effect of SLAPP claims and reduces the financial risks associated with legitimate claims.
  • More policy support is needed for approved regulation. Approved regulation acts as a first line of defence against both a legitimate claim and a SLAPP claim because a claimant is directed to the regulator’s complaints scheme and its arbitration scheme; both of which are designed to be fair, efficient and low-cost.