The SLAPP-down bill

A bolster for free speech, or a confusing mechanism that might spawn more litigation? Baroness Tina Stowell and Sir John Whittingdale MP have introduced the Strategic Litigation Against Public Participation (“SLAPP”) Bill into Parliament, following widespread criticism of the practice of harassment through tactical lawsuits.

Usually based in defamation law – and by their nature, often meritless - SLAPPs are defined by the Anti-SLAPP Coalition as abusive lawsuits filed by private parties with the purpose of silencing critical speech.

They can be financially devastating and present a danger to the freedom of expression in the UK, where the coalition says the majority of SLAPPs originate, as they target those speaking on issues of public interest. So, essentially they can be used by those with sizeable funds to exhaust journalists, whistleblowers, campaigners, social media commenters and others. A 2022 call for evidence showed they had also been used by sexual abusers to silence their victims, and by landlords to quash tenants’ complaints.

As drafted, the SLAPP Bill would give defendants the right to request an early dismissal from the sitting judge, if they can show that the lawsuit relates to a matter of public interest.

Let’s have a look at the Bill.

The first thing to note is: it’s short. Four sections (of which one is just the usual “this applies to England and Wales” etc) on one dispositive page.

Section 1 gives defendants facing actions relating to their statements or activities the right to request an early determination of that claim, if they can show the underlying subject matter is one of public interest. Note that the publication, statement or activity is to have been “carried out in the exercise of the right to free expression”. Once they make the request, the claim is stayed. If the claimant fails to show the claim is more likely than not to succeed at trial, the claim may be dismissed.

Where it is dismissed, it must be known as a SLAPP claim. This provision does not appear to have any consequences for the failed claimant.

However, if the underlying action of the defendant is serious enough that there is more public interest in allowing the claim than dismissing it, it must continue.

Section 2 deals with the consequences of the request. A successful defendant gets costs (unless inappropriate). The claimant must provide security for costs, but cannot get costs where the defendant’s request fails (unless appropriate). Any inappropriate delays to the proceedings may incur penalties. And the court has to consider the claimant’s conduct.

The Bill would also repeal provisions of the Economic Crime and Corporate Transparency Act (ECCTA) 2023, which set out a mechanism for the court to strike out a SLAPP claim pre-trial. That legislation defines a SLAPP claim far more narrowly, linking it directly to economic crime and requiring that the claimant’s behaviour is intended to cause harm or inconvenience outside of litigation norms.

Interestingly, this Bill has no real definition of a SLAPP claim. A claim that is dismissed before trial that relates to a statement made in relation to public interest is “deemed” to be a SLAPP claim. There is no indication as to the repercussions of that.

None of the possible requirements of the ECCTA definition or that proposed by the Anti-SLAPP Coalition – such as threats or harassment – are present in this Bill. So does this mean that any defendant – usually a media actor – can apply for a stay – which can take months – if facing any kind of claim relating to a matter in the public interest? The fact that the defendant is unlikely to face costs consequences may result in an uptick in defendants using this Bill to stay even claims with merit.

It has been a long road to the introduction of the Bill. Sir Wayne David introduced a similar private members’ bill in 2024, which was far lengthier and provided substantial thoughts on what might constitute a SLAPP claim. That bill was dropped after the dissolution of Parliament in May 2024.

Despite Keir Starmer’s indications that his government supported the introduction of a bill, and cross-party calls for anti-SLAPP legislation to be included in this year’s King’s Speech, it was not.

So as the Bill makes its way through the two chambers, we wait and see: will it go far enough to safeguard victims of tactical harassment? Or will it just encourage delays in meritorious defamation claims? Watch this space.