The government’s response to the call for evidence on SLAPPs (strategic litigation against public participation) is interesting for many reasons.
It is to be commended for the measured way with which it approaches the topic. It concedes something obvious to nearly everyone: that SLAPPS are a serious wrong, abusing our court processes and intimidating defendants through threats of bankruptcy and psychological stress. But, as the response mentions repeatedly, SLAPPs make up a small number of cases, and there are existing civil procedural mechanisms which, through strengthening, could deal with several of the abuses. For the rest, it proposes legislation to provide further procedural protections.
Interestingly, this is rather close to the Law Society’s own response to the call for evidence.
Other respondents, representing victims of SLAPPs, had understandably called for more. And, to compare the government response with another ongoing anti-SLAPP initiative – the European Commission’s draft directive and recommendation, which were issued during the UK consultation process – the EU looks as if it may end up giving defendants more than our government proposes within the UK. I will look at some of the areas where there are differences in approach.
For instance, some on the defendants’ side of the argument proposed a new statutory right of public participation, which would create a stronger defence, with a wider application to non-defamation areas of law.
But, if there were to be such a right, what does public participation mean? It is not clear on its own. The recent draft European Commission anti-SLAPP directive tries to define it as ‘any statement or activity by a natural or legal person expressed or carried out in the exercise of the right to freedom of expression and information on a matter of public interest’. But this definition gets caught up in the tautology of defining public interest by reference to the public interest itself, for instance by saying that it includes ‘activities of a person or entity in the public eye or of public interest’.
The government more sensibly says that ‘creating such fundamental additional rights for what is a small cohort of cases raises concerns about proportionality’ – while conceding that the public interest will be at the heart of many SLAPP disputes. It adds that the courts in England and Wales have well established existing tests around the public interest, whereas public participation is a new concept which would require interpretation.
Similarly, the government rejects a switch in the burden of proof from defendant to claimant. The draft EU directive does this by saying that ‘where a defendant has applied for early dismissal, it shall be for the claimant to prove that the claim is not manifestly unfounded’. Our government rightly points out the difficulty of proving a negative (try proving that you are not corrupt, for instance). The response also highlights that many legal practitioners cautioned against a switch, as being disproportionate and a restraint on access to justice.
What is of particular interest to solicitors is what the government has to say about the legal profession’s role. This also turns out to be measured. The government reviews the SRA’s initiative in issuing guidance, and reports that some victims who reported law firms to the SRA were not satisfied. But there is no official government proposal, as there is under other items, as reported above.
This contrasts with the position in the EU, where the European Commission issued a recommendation to member states covering lawyer behaviour. The recommendation has two legs in this respect: ethics and training.
On ethics, the recommendation says that member states should take appropriate measures to ensure that the lawyers’ rules of conduct, and the disciplinary sanctions for violation of those rules, consider and include appropriate measures to discourage SLAPPs. It also says that member states should encourage bars and lawyer regulators to align their professional standards, including their codes of conduct, with the content of the recommendation. Appropriate awareness raising and training are recommended.
On training, member states should encourage bars and legal training providers to offer training on SLAPPs, and it goes on to mention what the training should cover: the EU Charter of Fundamental Rights, the European Convention on Human Rights, plus the case law of the European-level courts dealing with these two documents.
In other words, the European Commission, both in terms of the legislation to deal with SLAPPs, and its approach to lawyers, has gone much further than the UK government. In my view, the EU goes too far: its legislative proposals overly favour the defendants’ line, without sufficient regard to claimants’ rights.
This is an area which balances human rights: the right to protect your reputation against the right to a fair trial. It will always be tricky, but, in my view, our government’s response is the better one.
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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