“SLAPPs”: Protecting journalists & the media from vexatious lawsuits
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By Nathan Sparkes
Concerns that wealthy individuals are abusing the courts to silence their critics and deter investigative journalism have recently been reported in the press and raised in Parliament. Meritless claims which are brought with the intention of chilling law-abiding journalism have been labelled “SLAPPs”: Strategic Litigation Against Public Participation.
There is no generally accepted definition of a SLAPP case but the very recent Irish Government Review of the Defamation Act uses this definition:
Groundless or exaggerated lawsuits initiated by state organs, business corporations or powerful individuals against weaker parties who express criticism or communicate messages that are uncomfortable to the litigants, on a matter of public interest. Their purpose is to censor, intimidate and silence critics by burdening them with the cost of a legal defence until they abandon their criticism or opposition. While civil society actors can be vulnerable to such initiatives, the nature of journalists’ work leaves them particularly exposed.
(p.163)
In other words, to be a SLAPP a claim must be “groundless or exaggerated” and designed to “censor, intimidate or silence critics”. Claims which are successful, or a brought in good faith to vindicate rights cannot properly be described as SLAPPs.
But SLAPP claims, properly so-called, are an obvious threat to investigative journalism. Although these claims are groundless or exaggerated a journalist will often not have the resources or support to properly defend themselves. They have no choice but to retract and settle the case.
The Government recently stated, in response to a Parliamentary debate on the matter,
[We] will be giving SLAPPs in UK courts urgent consideration.
The reality, however, is that the Government is standing in the way of two reforms which would help to address these concerns. And unlikely though it may appear, they have the support of the national press in their opposition.
These two reforms are the restoring of success fee recoverability for Conditional Fee Agreements, and costs-shifting in media cases.
Restoring Success Fee recoverability for media claims brought under Conditional Fee Agreements
Conditional Fee Agreements (CFAs), also known as “No Win No Fee” agreements, are a powerful tool to help level the playing field between the parties to libel cases.
A solicitor acting on a CFA agrees to take on the case on the basis that they will not recover their costs from their client if the case is lost. And if the case is won, they will recover their costs from the losing party.
Previously, it was the case that solicitors could recover a “success fee” from the losing side if their client’s case was successful.
Additionally, the party relying on a CFA could purchase “After the Event” insurance, with a premium payable by the other side if the case was won, but which would cover the costs they owed to the winning side if they lost.
This created a system under which those relying on a CFA were protected from paying out costs in any circumstances. The lawyers acting for them took a risk in taking on such cases, as they could be end up not being paid at all. But the opportunity to recover a “success fee” if they won made the CFAs an attractive proposition, if the lawyers felt there was a good chance they might win.
This system was used by both claimants and defendants. It was particularly attractive to defendants facing unmeritorious claims where the risks for the solicitors were relatively low and there was the potential to recover an “success fee” as well as ordinary costs. This was an important defensive resource for journalists and NGOs.
But in 2018, the Government removed the recoverability of success fees from the losing side in CFAs. The effect is that they are now much less attractive to law firms, and far fewer litigants can access them.
As CFAs were fundamentally a tool for levelling the playing field in legal disputes, they were championed by those who believed in access to justice but criticised by those who might stand to benefit from an inequality of resources in legal actions.
For example, although some newspapers now complain about the chilling effect of actions brought by wealthy litigants, it was representatives of the newspaper industry – notably former Mail editor Paul Dacre – who campaigned vociferously for their demise. This might be on account of the fact that in most actions involving newspapers they are the wealthier party: the imbalance in resources is in their favour.
Restoring success fees would benefit individuals and organisations who face litigation which they are likely to win, but which they cannot afford the risks of losing. The national press won’t like it. But it would be good for freedom of expression and help ensure defendants facing SLAPPs are able to defend themselves without the risk of facing excessive costs.
Costs-shifting, arbitration & the Leveson Inquiry’s recommendations
Sir Brian Leveson was highly conscious of the possibility that newspapers might face some risk of “chilling” from meritless claims from wealthy litigants. He proposed a solution in his Inquiry Report.
He proposed that newspapers adopt a system of arbitration which would be an arm of an independent regulator. This would be a cheap way of resolving legal claims for both sides.
Claimants cannot be forced to use arbitration instead of the courts. So Leveson recommended that, if newspapers were members of such a regulator – which was independent and offered arbitration for all cases – then newspapers would never have to pay the claimants’ costs in any case against them, even if they lost.
As a result, claimants are incentivised to use arbitration, which costs a lot less for newspapers to defend than a full-blown High Court libel action.
Under this scheme newspapers are incentivised to join a regulator, with arbitration, in two ways. Firstly, if they sign up, they are protected from paying their opponents’ costs. Secondly, the mechanism would work the other way for newspapers which refuse to participate in the system; the risk of claimants’ costs is borne by the newspaper, win or lose.
Arbitration makes justice accessible to both sides – claimants and defendants. As with CFAs, the effect of arbitration, backed by costs-shifting, is to level the playing field. This would end “chilling” and fear of SLAPPs for newspapers and also provide access to justice to legitimate claimants of modest means.
It would not help individuals facing claims but it would significantly help newspapers and small publishers. In fact, hundreds of local, investigative and ethical newspapers have signed up to an independent regulator (called IMPRESS) – offering arbitration – on the promise that the Government would protect them from these sorts of claims through this costs-shifting mechanism.
This mechanism is contained in section 40 of the Crime and Courts Act 2013, but the Government have refused to bring this provision into effect.
This is because the national press have lobbied against it. Why? Because the national press is opposed to independent regulation, preferring to control their complaints-handler, IPSO, instead. And of course – as with CFAs – in the majority of cases they face it is they who are the wealthier side.
If they are playing downhill in most of their games then, over the course of a season, an unlevel playing field suits them better.
The national press might not like it. But if the Government is serious about freedom of expression, and fighting the risk of chilling from vexatious lawsuits, then the first things it should do are to restore the success fee CFA regime and bring section 40 of the Crime and Courts Act 2013 into effect.