What are the chances of the same month seeing an EU directive, a Council of Europe recommendation, a UK parliamentary bill and a Solicitors Regulation Authority thematic review all on the same topic? Well, this April has seen just that, with the focus surprisingly being on strategic litigation against public participation (SLAPPs).
If you feel SLAPPed-out even before I go any further, I can understand. This is a topic which affects around 30 law firms in our country, those involved in reputation management. Even the Coalition Against SLAPPs in Europe, which might be considered the body which can find SLAPPs where no one else can, has not found very many, here or elsewhere.
The Coalition’s 2023 SLAPPs: A Threat to Democracy Continues to Grow report includes a table containing comparative numbers of SLAPP cases across Europe. Between 2010-2022, there had been 29 SLAPP cases in the UK (despite London often being considered the SLAPP capital of Europe). Over 45% of the 48 European countries surveyed had five or fewer cases over that 12-year period. Only one (Poland) had more than 100, and the rest had mostly under 50. Given the frequency of litigation across Europe each year, this is a very small number. Most lawyers will never come across a SLAPP case.
Yet the subject continues to generate enormous publicity. There are various reasons for this, which many believe outweigh its infrequency in overall litigation statistics (and even, probably, in defamation statistics).
First, a SLAPP case strikes at the heart of how we are governed if it allows genuine criticism in the public interest to be silenced by the rich (although this can also happen in other ways, as we saw last week in the settlement of the Hugh Grant case against the Sun. This raises its own questions about the absurd expense of civil litigation).
Second, the role of lawyers in aiding the silencers or the silenced raises complex ethical issues. Above all – how to decide whether this is a silencing operation at all, or a perfectly proper action to protect a reputation. What is a lawyer’s role when a rich client wants to silence someone through overwhelming litigation? When does aggressive litigation shade into abusive litigation? At what point does the public interest outweigh the client’s interest? Although those questions seem aimed at silencers’ lawyers, they are also difficult for the silenced lawyers – for instance around the duty to report misconduct to the SRA.
The SRA is trying to draw some red lines. It issued a SLAPP warning notice in 2022 and has plans to update it after its thematic review of last week. The thematic review found a generally positive picture among reputation management lawyers.
And what about other SLAPP publications? Although the new anti-SLAPP directive, which needs to be transposed into member state law by 7 May 2026, will catch litigation only with an EU cross-border element, the Council of Europe recommendation on countering the use of SLAPPs (CM/Rec(2024)2) does apply to us through the UK’s membership of the Council of Europe.
The publication of such hefty instruments, at the same time as a private member’s bill going through the UK parliament – called ‘A Bill to make provision about the misuse of litigation to suppress freedom of speech’ – gives rise to maybe the biggest mystery of all. What exactly is a SLAPP?
We may know one when we see one, but trying to pin this down has resulted in varying definitions in each instrument. The EU considers it litigation brought on account of public participation; the Council of Europe as litigation brought to penalise free expression on matters of public interest and the exercise of rights associated with public participation. The private member’s bill, based on a similar definition in the Economic Crime and Corporate Transparency Act 2023, is closer to the Council of Europe and speaks about free speech and the public interest. Each has lengthy definitions of particular phrases, which also differ.
It is also difficult for the profession to have a single view on SLAPPs, because it is a topic where there are two sides, such as personal injury or housing. In this case it is claimant and defendant lawyers. They have each lobbied the government with their views – most recently, newspaper editors and others wrote a letter to counter the influence of claimant lawyers. The Law Society is caught somewhere in the middle, representing both, and trying to extract points of general importance, to protect access to justice and the reputation of the profession.
So, SLAPP-ed out or not, this tiny topic with a giant impact will continue to haunt us and our policy and ethical discussions for some time.
Jonathan Goldsmith is Law Society Council member for EU & International, chair of the Law Society’s Policy & Regulatory Affairs Committee and a member of its board. All views expressed are personal and are not made in his capacity as a Law Society Council member, nor on behalf of the Law Society
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