Silencing Critics: The Unjust World Of SLAPPs And How The SRA Is Fighting Back
Strategic Lawsuits Against Public Participation, commonly known as SLAPPS, have recently gained significant attention and scrutiny. With growing media coverage and increased political attention, it is evident that this legal tactic poses a serious threat to our fundamental right to free speech. These lawsuits are often used as a tool by powerful individuals or organisations to silence critics and stifle dissent. In this article, I will explore what exactly SLAPPs are, why they are unjust, and what can be done to address this pressing issue, with a particular focus on the new SRA SLAPP warning.
The government has officially defined SLAPPs as 'an abuse of the legal process, where the primary objective is to harass, intimidate and financially and psychologically exhaust one's opponent via improper means. SLAPPs are typically grounded in defamation law, although they may also pertain to issues such as privacy, confidentiality, and data protection. While genuine defamation cases typically revolve around the protection or restoration of the plaintiff's tarnished reputation, SLAPPs are aimed at preventing legal inquiries and discussions surrounding matters of interest. This particular field of legal action has garnered significant attention within the public consciousness, particularly as a result of sanctions against some Russian billionaires and organisations by the UK in response to Russia's invasion of Ukraine.
The Solicitors Regulation Authority (SRA), responsible for regulating solicitors in England and Wales, has announced that it is currently undertaking investigations into 40 SLAPPs cases. The authority's March 2022 report highlights the presence of 'significant concerns being raised about solicitors making meritless claims on behalf of oligarchs to stifle public discourse about corruption or money laundering.' The SRA went on further to warn lawyers that 'they should not bring cases which are not properly arguable, bring excessive or oppressive proceedings or act in a way which could mislead or take advantage of others during proceedings'. The SRA has emphasised the ethical responsibility of legal practitioners to alert the regulatory body of potential instances of SLAPPs. However, during its evaluation of 25 legal firms, the authority discovered three instances where solicitors neglected to report litigation that exhibited abusive tendencies.
The Solicitors Regulation Authority (SRA) is investigating a potential SLAPP case involving a London law firm representing Yevgeny Prigozhin, a Russian oligarch who leads the Wagner group, a well-known mercenary army. Wagner has faced allegations of human rights violations and civilian killings in Mali and the Central African Republic, and it has played an escalating part in Vladimir Putin's conflict with Ukraine.
WHY ARE SLAPPS UNJUST?
SLAPPs pose a significant challenge not just in the UK but also to the legal order of the European Union. Their impact on democracy and human rights is particularly noteworthy as they impair the fundamental right to freedom of expression for individuals who speak up in the public interest. Moreover, the chilling effect of SLAPPs on public interest activities creates a broader negative impact on society. SLAPPs also distort and abuse the system of civil law remedies, thus compromising the mutual trust between legal systems within the EU. This undermines access to justice and judicial cooperation.
Furthermore, the adverse effects of SLAPPs extend to the effective enforcement of EU law, particularly concerning the internal market and protection of the EU budget which requires scrutiny of independent watchdogs. SLAPPs, therefore, threaten the proper functioning of the EU legal framework. Lastly, the fear of SLAPPs also curtails freedom of movement as potential targets may avoid operating in jurisdictions with higher SLAPP risk.
Additionally, many cases brought by claimants do not result in a win as they are either dropped before trial or lost in court, whether it be at the first instance or appeal. This outcome is not desirable for the media, especially if they were prevented from reporting on the issue during the case. If a case takes several years to win, the journalist's original story may lose relevance.
FOR LAWYERS WHO REPRESENT CLIENTS WHO ARE DEEMED 'UNPOPULAR' OR CONTROVERSIAL, WHAT IMPLICATIONS DOES THE GROWING INTEREST IN SLAPPS HAVE?
Despite the existence of law firms and lawyers who are willing to represent unpopular or controversial clients, it is important to note that there may be consequences associated with such representation. While law firms can work with whomever they choose as long as they comply with relevant regulations and the law, the media in a democracy has a responsibility to investigate and report on issues such as corruption, unethical behaviour, environmental and human rights abuses, and criminal activity.
Even if a law firm operates legally and ethically while advising a client, the association with a client who has a reputation for such issues may cause the firm to be seen in a negative light. This was evident in the media's coverage of the Panama and Paradise Papers leaks, where even individuals and organisations who acted lawfully and on appropriate instructions were criticised.
IS A WARNING ENOUGH?
Growing calls have urged the Government to introduce a law against SLAPPs, and in March 2022, former Deputy Prime Minister Dominic Raab initiated an urgent call for evidence to address the challenges posed by SLAPPs. A Model Anti-SLAPP Law has been drafted by the UK Anti-SLAPP Coalition in consultation with media lawyers and industry experts, who have urged Raab to move forward with legislation to protect against SLAPPs. Proposed measures include an early dismissal mechanism, allowing defendants to recover costs on an indemnity basis, and imposing financial penalties to deter the use of SLAPPs.
However, the challenge for the Government is to strike a balance between allowing genuine claims to proceed while preventing unmeritorious claims that aim to silence matters of public interest. The case of Arron Banks v Carole Cadwalladr demonstrated the difficulty of identifying a SLAPP correctly, and many have argued for a broad definition of SLAPPs to address all possible tactics and areas of law used by claimants. Yet, a broad definition may restrict claimants with genuine claims from accessing justice and protecting their reputation. It remains to be seen if the Government will introduce an anti-SLAPP law and how it will define SLAPPs while ensuring freedom of speech is protected.
In conclusion, Strategic Lawsuits Against Public Participation (SLAPPs) are a serious threat to free speech and the protection of human rights. The legal tactic is often used by powerful individuals or organisations to silence critics and stifle dissent, posing a challenge to the legal order of the European Union and undermining access to justice and judicial cooperation. While the Solicitors Regulation Authority (SRA) has issued a warning and is investigating SLAPP cases, calls have been made for the UK government to introduce a law against SLAPPs. It is crucial to strike a balance between allowing genuine claims to proceed while preventing unmeritorious claims that aim to silence matters of public interest. With the implementation of proposed measures such as an early dismissal mechanism, allowing defendants to recover costs on an indemnity basis and imposing financial penalties to deter the use of SLAPPs, it is hoped that justice can be served, and freedom of expression can be protected.
