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SLAPPs Reform: Courts to be granted new powers to dismiss SLAPPs

23rd August 2022 - Tessa McKeown

In a further move to strengthen the protection of the freedom of expression, the Justice Secretary Dominic Raab announced on Wednesday a package of measures to address Strategic Lawsuits Against Public Participation, or SLAPPs. According to the government, the latest reforms are intended to level the playing field between wealthy claimants with deep pockets and defendants.

SLAPPs are considered to be an abuse of process where their principal objective is to harass, intimidate and financially and psychologically exhaust ones opponent via improper means. In March, the government issued a Call for Evidence on SLAPPs. On 20 July 2022, the government issued its response. It was acknowledged in the response that SLAPPs litigation has the potential to impact not just defamation claims, but also the laws of privacy and data protection.

A range of options are being considered by the government for reform, including legislative options, defamation reform options, as well as procedural, regulatory and costs reforms.

The Government has said it intends to pursue legislative reform at the earliest opportunity. The recently announced intended reforms include:

  • Courts in England and Wales will be granted new powers to protect free speech and the rights of journalists.
  • A three-stage test will be introduced to assist courts with determining whether a claim is a SLAPP, and whether it ought to be subject to early dismissal:
  1. First, the court will consider if the action is against activity in the public interest.
  2. Second, the court will analyse any evidence of abuse of process.
  3. Third, the court will assess whether the claim has sufficient merit.
  • Costs caps will be introduced in effort to level the financial playing field, and shield those fighting lawsuits from crippling costs and enable meritless cases to be properly defended.

The announcement was welcomed by journalists and free speech activists who had been campaigning against SLAPPs and advocating for greater restrictions on such litigation to enhance and protect democratic debate. For some, the reforms are seen as an effective tool to restrict the abuse of the court process by those with deep pockets who are using litigation strategically to push an agenda.

The reforms have been criticised, however, by many who consider that the existing defamation law already strikes the right balance between the freedom of expression and the right to privacy and reputation. Under the Governments response, it has said that it intends to continue to monitor whether there is a need for wider defamation reform more generally, including the section 4 public interest test, but reiterated that its current priority is SLAPPs reform.

The three-stage test regime requires primary legislation to be implemented, and the government has indicated that it will legislate at the earliest opportunity. If the reforms are passed in their current recommended form, it remains to be seen how frequently they will be deployed during the early stages of litigation, and what that will mean for the pursuit and settlement of defamation claims more generally. 

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