Advancing robust protection against SLAPPs within the parameters of the MOJ’ s proposed legislative framework
The UK Anti-SLAPP Coalition welcomed the MOJ’s commitment to bring in legislative reform to tackle SLAPPs in July. While the framework proposed has the potential to provide meaningful protections against SLAPPs, much will depend on how this is fleshed out. There are three conditions in particular that we believe any effective law must meet:
CONDITION 1 – SLAPPs are disposed of as quickly as possible in court: in order to achieve this we need a new statutory mechanism that will require claims targeting public participation to meet a higher threshold in order to advance to trial. Such a threshold must be high enough to prevent such abusive lawsuits being stretched out to trial. Judges should also have discretion to filter out cases that exhibit abusive qualities or would otherwise have a disproportionate impact on freedom of expression.
CONDITION 2 – Costs for SLAPP targets are kept to an absolute minimum: costs must be awarded to targets of SLAPPs on a full indemnity basis. Since SLAPPs operate through the litigation process, however, it is important that SLAPP targets are able to see that process through to a resolution. While we recognise that the government has no plans to expand legal aid, there are other ways the costs can be minimised for those targeted by such lawsuits – including by reducing the burden of disclosure.
CONDITION 3 – Costs for SLAPP filers are sufficiently high to deter further SLAPPS: in addition to costs being made available on a full indemnity basis, exemplary damages should be available for cases where the claimant has exhibited particularly egregious conduct, and where the time and psychological harm caused to the defendant needs to be compensated. This must be proportionate to the resources available to the claimant so as to provide an effective deterrent to those using such tactics.
To achieve the above, we have drawn up a UK Model Anti-SLAPP Law in consultation with senior lawyers from across the sector. We hope this draft law will guide the proposals currently being developed by the Ministry of Justice (MoJ) and will also be discussed and adopted by the devolved governments in the UK. In particular, we would point to the importance of the following three features:
A Higher Merits Threshold: it is emphatically not enough to simply bring forward a test for summary judgement (i.e. a “real” or “realistic” prospect of success). Since a motion for summary judgement can already be filed at an early stage in proceedings, an early dismissal mechanism that uses the same test will be redundant. The problem is that the summary judgement threshold is too low to filter out SLAPPs and provide meaningful protection for those targeted. Given ambiguities in laws such as defamation, it is simply too easy for a SLAPP claimants to show they have a “real” prospect of succeeding at trial. We have therefore proposed that SLAPP claimants must show a likelihood of prevailing at trial.
Wide and Robust Criteria for Identifying Abuse: under the three-part test proposed by the MOJ (fleshed out in the model law), the early dismissal mechanism will only be triggered when a case has been identified as showing “hallmarks of abuse”. This should embolden those drafting the law to provide for a more rigorous merits test (see above), since only abusive claims will be subject to such a test. It is crucial, however, that these “hallmarks” are wide enough to cover all qualities that are indicative of an improper purpose. We have therefore proposed ten specific criteria that capture common features of SLAPPs.
An Objective Test for Dismissal: the MOJ’s framework requires that only cases identified as having features of abuse are subject to an early dismissal mechanism. This does not require courts to identify the purpose of the lawsuit. Lawsuits filed with an improper purpose can in theory already be dismissed and made subject to sanctions: the problem is that courts are too reluctant to infer such a purpose where doing so would lead to dismissal. Our objective test – requiring the court to identify abusive lawsuits (i.e. those with features of abuse) as opposed to strategic lawsuits – would avoid the problems associated with such a subjective inquiry.