What is a SLAPP?
What is a SLAPP? It is is the short name for a Strategic Lawsuit Against Public Participation.
Using layman’s terms, a SLAPP is where a wealthy person or organisation/corporation threatens to (or actually does) issue court proceedings against another person, despite often that person having done nothing legally wrong; usually the recipient of a SLAPP will not be as financially well off as their opponent, and may well capitulate at a pre-action stage knowing they can’t afford legal representation, let alone the other side’s costs and damages if they lose.
In the UK, SLAPPs tend to be legal actions which are within the High Court, making them extremely expensive to defend, as well as bring. London-based solicitors involved in SLAPPs will be charging easily £500+ per hour, and an experienced Barrister will command £15,000 per day for conducting work in the High Court – plus a Barrister’s briefing fee is often anywhere between £50,000 and £250,000, plus refreshers.
Prior to SLAPPs becoming ‘a thing’ the rich used to use libel and defamation proceedings to try to shut people down. Libel proceedings in the UK require the Defendant (the person who has published the ‘defamatory’ comment) to prove what they said was justified. However, reforms in the Defamation Act 2013 have made it considerably harder for Claimants to bring libel claims, as there is now a prerequisite to prove serious harm and/or serious financial loss. This means that the burden moves back to a Claimant to get their claim off the ground – but if the Court is sympathetic to their claims of harm/loss, its back on the Defendant to prove what they said or did was justified.
With the Defamation Act 2013 causing blockades for those looking to looking to abuse the Court system for easy wins – solicitors are getting creative, and hiding behind other styles of litigation, such as conspiracy claims and economic torts to get around the issue.
In reality, the point of a SLAPP is that it is unlikely to ever get to a Trial, or get as far as a Judge making any findings on the substantive issues – the idea is to back opponents into a corner; whether through pre-action correspondence, or through issuing a claim and offering to settle it subject to favorable undertakings for the Claimant.
SLAPPs are not just unique to the United Kingdom, but also are known to be widely issues in Europe and America as well.
Economic Crime and Corporate Transparency Act 2023
In late October of 2023, the Economic Crime and Corporate Transparency Act 2023 came into force, in particular Section 194 and Section 195 – I’ll call it “the ECCT” for ease.
Section 194 of the ECCT explains that the Courts must strike out claims which amount to a SLAPP:
(1)The power to make Civil Procedure Rules must be exercised so as to secure that Civil Procedure Rules include provision for ensuring that a claim may be struck out before trial where the court determines—
(a)that the claim is a SLAPP claim (see section 195), and
The qualification of the meaning of a SLAPP is explained in Section 195 of the ECCT:
(1)For the purposes of section 194 a claim is a “SLAPP claim” if—
(a)the claimant’s behaviour in relation to the matters complained of in the claim has, or is intended to have, the effect of restraining the defendant’s exercise of the right to freedom of speech,
(b)any of the information that is or would be disclosed by the exercise of that right has to do with economic crime,
(c)any part of that disclosure is or would be made for a purpose related to the public interest in combating economic crime, and
(d)any of the behaviour of the claimant in relation to the matters complained of in the claim is intended to cause the defendant—
(i)harassment, alarm or distress,
(ii)expense, or
(iii)any other harm or inconvenience,
beyond that ordinarily encountered in the course of properly conducted litigation.
These are good starting points to consider whether a claim may be a SLAPP. However, sometimes SLAPPs may not purely apply to the ECCT – for example if the Claimant is not a corporation, or it is a corporation, but there is no crime involved, for example in cases attempting to shut down reviews of bad customer service.
The Solicitors Regulatory Authority Warning/Meaning
In circumstances where there is no crime or a Claimant (or proposed Claimant) isn’t a corporation – the SRA’s warning over SLAPPs may prove useful.
According to public warning on the Solicitors Regulatory Authority (in the UK), on the SRA website:
“The key aim of a SLAPP is to prevent publication on matters of public importance such as academic research, whistleblowing, campaigning or investigative journalism. They are a threat to the rule of law, free speech and a free press.“
The SRA is actively prosecuting solicitors involved in SLAPPs, but it remains to be seen whether the SRA prosecute on the basis of their ‘warning’, or whether they rely on the ECCT, or both.
Conclusion
SLAPPs come in various different forms. Sometimes they are defamation claims, other times they can be different types of litigation.
At a criminal and/or corporate level Sections 194 and 195 of the ECCT will be useful definitions of a SLAPP.
In cases which may not involve criminal conduct, or may not involve a corporation – the SRA warning provides a useful explanation of the conduct solicitors should not be involved with, and the ECCT may also prove a useful foundation where a claim (if issued) can be struck out.
I am hopeful that explains what a SLAPP is – but the next logical question is of course: is a SLAPP legal?