Responding to the Ministry of Justice’s consultation on SLAPPs, the Society said that for too long powerful individuals and companies have attempted to silence and intimidate journalists and critics through time-consuming and costly litigation.
Frequently linked to investigations into financial crime and corruption, the Society said that efforts to tackle SLAPPs as well as the “hidden iceberg” of pre-publication legal intimidation, could include a new anti-SLAPP law or tweaks to existing legislation to reduce the opportunities for abuse.
It said: “Alongside tweaks to the Defamation Act 2013 to reduce the opportunities for abuse and updates to Civil Procedure Roles, the Society would support an anti-SLAPP law that could introduce procedural reform across all laws used for the purpose of intimidation and to ensure that practical deterrents are introduced to enable journalists – as well as campaigners, academics and authors – to continue to fulfil their role in keeping the public informed without fear of intimidation or harassment.”
The use of SLAPPs against journalists has been highlighted in recent months by prominent cases involving Financial Times journalists and authors Catherine Belton and Tom Burgis who each separately faced legal action from powerful individuals and organisations alongside the threat of excessive legal costs to defend their reporting.
Calling for the introduction of a merits test to allow early dismissal of cases, the Society also said that any new anti-SLAPP law must ensure that costs are capped at an early stage “to deter cases where the primary purpose is to drain the resources of the defendant” and punitive/exemplary damages and compensation must be given to those that fall victim to this form of lawfare.
It added: “All costs should automatically be borne by the plaintiff where the case is found to be a SLAPP. In addition, a stay of proceedings must be implemented whereby pending resolution of an anti-SLAPP motion, all disclosure obligations would be suspended.”
The Society also called for measures to be put in place to tackle the imbalance of resources often seen between wealthy plaintiffs and defendants and greater accountability and scrutiny of organisations and institutions that continue to facilitate the use of SLAPPs.
It said: “It is essential that any future law addresses the imbalance and unequal access to resources that is often seen between wealthy plaintiffs and defendants. One way of addressing this issue could be through expanding the accessibility of legal aid or by offering some other form of financial support or funding to defendants seeking to defend a claim in the public interest.
“In addition, it is essential that those that enable and facilitate the use of SLAPPs are held to account. This could be achieved through tightening regulatory standards in industries that continue to facilitate their use and by enhancing compliance roles within law firms to ensure proper scrutiny of clients and where their money is coming from.”
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