November 2, 2023
SLAPPs are a tool used by wealthy individuals to intimidate and financially burden those who seek to expose their wrongdoing, such as threatening exorbitant legal costs in suits brought against journalists falsely claiming defamation or invasion of privacy. For over a year, journalists and Government have been discussing the need for a UK anti-SLAPP law with the aim of ensuring journalists, public watchdogs, whistleblowers and activists can continue to publish information that is in the public interest without harassment.
In September 2022, the Government introduced the Economic Crime and Corporate Transparency Bill, aimed at preventing the abuse of UK corporate structures and tackling economic crime. In June 2023, the Government stated that it would add provisions to the Bill to prevent SLAPPs relating to economic crime. The Bill became law, the Economic Crime and Corporate Transparency Act 2023, on 26 October 2023.
The Act provides that the rules of civil court procedure in England and Wales must include provisions ensuring that a court claim can be struck out before trial where the court determines that the claim is a SLAPP claim, and the claimant has failed to show that it is more likely than not that the claim would succeed at trial. The rules must also include a provision that a court may not order the defendant to pay the claimant’s costs in respect of a SLAPP claim unless the defendant’s misconduct justifies such an order. Presumably, this applies where a SLAPP claim is allowed to proceed.
A claim is a SLAPP claim if (1) the claimant’s behaviour in relation to the matters complained of in the claim has, or is intended to have, the effect of restraining the defendant’s exercise of the right to freedom of speech, (2) any of the information that is or would be disclosed by the exercise of that right has to do with economic crime, (3) any part of that disclosure is or would be made for a purpose related to the public interest in combating economic crime, and (4) any of the behaviour of the claimant in relation to the matters complained of in the claim is intended to cause the defendant harassment, alarm or distress, expense, or any other harm or inconvenience, beyond that ordinarily encountered in the course of properly conducted litigation.
In determining whether the condition at para (4) above is satisfied, the court may take into account whether the behaviour is a disproportionate reaction to the matters complained of in the claim, including whether the costs incurred by the claimant are out of proportion to the remedy sought; whether the defendant has access to fewer resources with which to defend the claim than another person against whom the claimant could have brought (but did not bring) proceedings in relation to the matters complained of in the claim; and any relevant failure, or anticipated failure, by the claimant to comply with a pre-action protocol, rule of court or practice direction, such as in respect of choice of jurisdiction, dilatory strategies or the nature and amount of material sought on disclosure.
For more information, click here.