A third private member’s bill has revived the apparently stalled campaign opposing strategic litigation against public participation. And there is a fourth on the way
Third time lucky? This week, a former civil servant and BBC executive, Baroness Stowell of Beeston (Tina Stowell), laid a two-page bill before the House of Lords. The Strategic Litigation Against Public Participation Bill seeks to create a mechanism for judges to throw out at an early stage, in the public interest, legal claims deemed to be aimed at gagging publications.
It is the third private member’s bill to be introduced with this aim in the five years since the UK’s anti-SLAPP campaign mobilised in earnest.
Stowell described SLAPPs as ‘a stain on our legal system’. Introducing the measure for its first reading, she declared that she had received support in preparing the bill from the UK Anti-SLAPP Coalition, the Media Lawyers Association and the News Media Association.
Her bill is just one prong of the campaign’s parliamentary issue. A draft private member’s bill, being prepared by Conservative MP Sir John Whittingdale, is expected to cover much the same ground.
Campaigners hope that the two-pronged approach – and a fair wind from the government – will give this measure a better chance than previous attempts at legislation. A bill sponsored by Labour’s Wayne David was lost with the dissolution of parliament for the 2024 election; another introduced by the Conservatives’ Gregory Stafford languished without a second reading before running out of time this year.
Stowell’s bill is shorter than its predecessor, partly because it drops a page-long attempt to define a SLAPP case. However, its proposals are along much the same lines. Essentially, it states that the Civil Procedure Rules must include a provision to ensure that a defendant in a claim ‘relating to any publication, statement or activity carried out in the right to free expression’ can apply for early determination if the publication concerns a matter of public interest.
Claims must be stayed while the application for early determination is in progress and must be dismissed if the claimant fails to show that it is ‘more likely than not that the claim would succeed at trial’.
'Provisions already exist to strike out claims that clearly lack merit or are abusive. Adding an extra stage of litigation will simply add to the complexity and cost of proceedings'
Iain Wilson, Brett Wilson
However, claims must not be dismissed at this stage if the ‘harm suffered or likely to be suffered’ as a result of the publication ‘outweighs the public interest in dismissing the claim before trial’.
Successful applicants for early dismissal must be awarded costs; however, in the event of an unsuccessful or partially successful application, the claimant is not entitled to recover their costs.
Whittingdale’s bill ‘will be essentially the same in terms of the mechanism and costs’, the Anti-SLAPP Coalition said.
One of the lawyers behind the campaign is Pia Sarma, chair of the Media Lawyers Association, whose members include in-house counsel at major publishers. Sarma, who is editorial legal director at The Times, said: ‘Anti- SLAPP legislation prevents the weaponisation of the courts to silence public discourse. Legislation need not curb access to justice and an early dismissal mechanism can act as both deterrent and shield. I am pleased that these private members’ bills offer a simple and fair system and I hope these legislative initiatives will succeed.’
Critics of the proposal include the rival Society of Media Lawyers, whose members include prominent claimant firms. Vice chair Iain Wilson, partner at London firm Brett Wilson, said: ‘Defamation law was overhauled in 2014 and is already finely balanced between claimant and defendant rights. There is no need to reinvent the wheel. Whether a publication is in the public interest and/or a claim is meritorious are matters for trial. Provisions already exist to strike out claims that clearly lack merit or are abusive. Adding an extra stage of litigation will simply add to the complexity and cost of proceedings.’
Wilson added: ‘Moreover, most campaigners appear to have either finally accepted that relatively few “SLAPP claims” are actually issued in court or have declined to produce evidence to support the proposition that the courts are awash with SLAPPs.
‘Their more recent focus has been on how they say the threat of legal action can have a chilling effect. If this is really where the mischief lies (and proper independent research is required here), legislation focused strictly on claims that have already been issued in court seems pointless.’
Wilson observes: ‘It is disappointing that politicians seem so susceptible to media lobbying designed to soften defamation law, yet appear to have little interest in consulting with lawyers who act for victims of media/online abuse.’
All eyes will be on the lord chancellor and deputy prime minister David Lammy, who has pledged to introduce anti-SLAPP legislation when parliamentary time allows. However, it is possible that in the weeks ahead he will have other priorities.
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