News focus: SLAPPs row reaches the regulator

Political pressure to tackle so-called lawfare and strategic lawsuits against public participation (SLAPPs) was already building before Russia’s invasion of Ukraine turned the spotlight on lawyers acting for oligarchs. But the war has triggered a ‘generational moment’, media defence lawyer Adelaide Lopez suggested this week, one which is ‘here to stay’ – although she warned that supporters of anti-SLAPP measures should not be complacent.

The government opened a consultation last month on potential countermeasures, proposing changes to the regulatory regime and capping claimants’ recoverable costs, after criticism from backbench MPs who condemned ‘amoral’ lawyers offering ‘legalised intimidation’.

This week, the chair of the Lords Communications and Digital Committee wrote to lord chancellor Dominic Raab MP to welcome the recent call for evidence and ask him to ‘explore options for deterring abusive litigation and personal intimidation from the outset’.

Meanwhile, the European Commission has issued a draft directive designed to ‘improve protection of journalists and human rights defenders from abusive court proceedings’, including by enabling judges to ‘swiftly dismiss manifestly unfounded lawsuits’.

However, a significant problem remains: what exactly is a SLAPP? And, without a definition, how can they be tackled effectively (assuming they exist in the first place)? The general consensus among campaigners seems to be ‘I know one when I see one’, and that something needs to be done – but that is not an ideal basis for legislation.

'In some cases anti-SLAPP [laws] have become an instrument of abuse… there can be legitimate disagreements about what constitutes public participation'

Charlie Holt, English PEN

Charlie Holt, UK campaigns manager for English PEN, accepted that it can be ‘very difficult to identify a SLAPP intent, a malicious intent’, when, for example, the super-rich sue journalists.

Speaking at the launch of a report on SLAPPs by the Foreign Policy Centre and ARTICLE 19, Holt said that ‘in some cases anti-SLAPP [laws] have themselves become an instrument of abuse’, adding that ‘there can be legitimate disagreements about what constitutes public participation’.

His latter point was illustrated when Charlotte Leslie, a former MP facing a libel claim from a Tory donor, criticised investigative journalist Clare Rewcastle Brown for allegedly reporting comments by Leslie which she said were given ‘off the record’, prompting Rewcastle Brown to say: ‘Your case has nothing to do with public interest journalism frankly.’”

There is also a dispute, for example, about whether the claims brought against journalist Catherine Belton over her 2020 book Putin’s People – one of the most prominent cases which prompted public calls for action before the Russian invasion – are even SLAPPs at all, contrary to the view of some MPs.

A lawyer familiar with the case pointed to the fact that the claims led to amendments to the book (albeit relatively minor ones) and said the description of it as a SLAPP was ‘remarkable’.

And, if regulations are tightened, will the Solicitors Regulation Authority be able to properly enforce them? The response from anti-SLAPP campaigners appears to be a resounding ‘no’, with Lopez and Holt both agreeing that the regulator does not have the ‘capacity or the competence’ to do so.

Lopez, a senior associate at Wiggin, suggested that the PR campaign of ‘naming and shaming’ solicitors – which has seen Conservative MP Bob Seely identify alleged ‘enablers’ in parliament and US congressman Steve Cohen call for travel bans – might be the most effective method, for now at least.

The SRA has recently issued guidance which says lawyers ‘must ensure that proceedings are pursued properly’ – a move which was welcomed by Gill Phillips, legal director at Guardian News and Media, as a ‘big step forward’.

She told peers earlier this month that she had previously considered complaining to the SRA about some ‘egregious’ pre-action letters but decided that ‘life’s too short’. Perhaps that will change now.

Susan Coughtrie, project director at the Foreign Policy Centre, this week encouraged journalists to report lawyers to the SRA if they felt they were being ‘SLAPP-ed’ and said there need to be ‘real penalties for those who are enabling’ oligarchs.

The moment appears ripe for significant change – legislative, regulatory or otherwise – but it still remains unclear what can or should be done.