The Chair of the Select Committee on Communications and Digital, Baroness Stowell, has written to the Lord Chancellor about the anti-SLAPP Private Member’s Bill working its way through Parliament. Echoing concerns raised by others, including the anti-SLAPP coalition (on which we’ve commented here), the letter states that there is a “significant risk that, in its current form, the Bill will end up undermining protections against SLAPPs”.

Three areas in particular are highlighted. First, the Committee draws attention to the current wording of the Bill which defines a SLAPP as including behaviour which “it is reasonable to conclude…is intended to cause the defendant any harm [non-exclusively defined as expense, harassment, alarm or distress] or inconvenience beyond that ordinarily encountered in the course of properly conducted litigation”. In the Committee’s view, such drafting appears to “enshrine in statute a suggestion that the intent to cause harassment, alarm or distress may be a valid objective of properly conducted litigation”. It suggests that either the reference to “ordinarily encountered in the course of properly conducted litigation” is removed, or that a distinction is made between (1) harassment, alarm or distress, (2) any other harm, and (3) expense or inconvenience beyond that ordinarily encountered in the course of properly conducted litigation.

Second, the Committee does not think that the Bill adequately takes into account the role that pre-action protocols can play in this area, given that “many SLAPPs succeed by silencing journalists through intimidatory tactics at an early stage, before a case makes it to formal court proceedings”. Third, it suggests that the regulator be empowered to impose greater fines on law firms for wrongdoing related to SLAPPs. It points out that currently the maximum fine that can be imposed on traditional law firms is £25,000, even though Alternative Business Structures who carry out legal work can be fined up to £250 million. The Committee expresses bewilderment at such an enormous difference, and argues that the regulator should be able “to impose fines that actually deter wrongdoing and stop law firms profiting from SLAPPs cases”.

The letter also touches upon wider action on SLAPPs outside the Bill. It highlights how concerns have been raised about law firms engaging private intelligence or PR firms (who are outside the jurisdiction of the SRA) to intimidate defendants, and encourages the Government to consider extending the remit of the SRA to prevent this conduct. The Committee also draws attention to the fact that proceeds of laundered money could be used to fund SLAPP claims and recommends that the Government reviews the Proceeds of Crime Act 2002 to prevent the use of proceeds of crime being used for these purposes. Finally, the Committee urges that there are adequate mechanisms in place for the police to record threats against journalists, and requests clarification on which Department or agency provides public-facing support to journalists facing such threats.

To read the letter in full, click here.