July 25, 2022
The Government characterises 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. These actions are typically initiated by reputation management firms and framed as defamation or privacy cases brought by individuals or corporations to evade scrutiny in the public interest.
The consultation was launched in March 2022 and set out a range of reform options:
- reforms in legislation designed to classify SLAPPs so that they could be subjected to particular case and cost management regimes;
- reforms to defamation law;
- reforms to court procedure, practice and processes;
- reforms to the approach to costs in defamation law; and
- regulatory reforms.
Having considered the responses and evidence received, the Government has concluded that the type of activity identified as SLAPPs and the aim of preventing exposure of matters that are in the public interest go beyond the parameters of ordinary litigation and pose a threat to freedom of speech and the freedom of the press.
Further, the Government says SLAPPs do not just involve defamation law, but also other legal heads such as privacy, data protection and trade marks.
As a result, the Government intends to pursue targeted legislative reform at the earliest opportunity. It intends to introduce a new statutory early dismissal process to strike out SLAPPs and avoid lengthy SLAPP litigation. This measure will be made up of three parts:
- a definition of public interest;
- a set of criteria for the courts to determine whether a case should be classified as a SLAPP based on one or more of the common characteristics of such actions, e.g. sending a very large number of highly aggressive letters on a trivial matter, and similarities with an abuse of process; and
- a merits test.
The Government also intends to pursue other reforms which do not require primary legislation, but which would use the statutory definition and criteria as the basis for SLAPPs to be made subject to a special regime. The focus of these reforms will be a formal costs protection scheme, as the responses provided ample evidence that costs exposure is the single greatest factor overwhelming and intimidating opponents in SLAPPs cases. The precise levels of any costs caps, and the design of the scheme, will be explored in due course with the Civil Procedure Rule Committee. The Government also wants to do more work looking at the possibility of legislating for a claimant to pay further financial penalties where a claim is found to be a SLAPP. It considers that punitive damages may be a particularly appropriate reform measure in a SLAPPs context.
The case for reform was not as strong or clear cut in relation to defamation law. The Government says that this is in part because existing legislation provides measures which can be used to address SLAPP-style defamation litigation. It was also because the evidence provided is not compelling enough for the Government to be confident that reform would have the desired effect and not have undesired consequences. The Government therefore intends to continue to monitor the need for wider defamation reform, but its immediate focus is SLAPPs reform. To access the consultation outcome, click here. To read the Government’s press release, click here.