Dr Erin Ferguson

28 September was the International Day for Universal Access to Information (aka International Right to Know Day). This is a day to commemorate the development of freedom of information (FOI) laws and to take stock of the work still to be done to strengthen open government and transparency around the world.

On this day, we often reflect on what has been achieved since the widespread enactment of FOI laws, such as the exposure of the MP expenses scandal or the recent revelation that US airlines have been lobbying the EU to reconsider its plans for monitoring aircraft pollution.

Put simply, FOI laws allow the public to find out what is happening, which in turn is an important first step in holding power to account.

But what about the stories that never get told? What happens when environmental campaigners are threatened with legal action for protesting against a powerful corporation? Or a newspaper pulls a story after a politician warns that he will sue for defamation?

Strategic lawsuits against public participation (SLAPPs) are vexatious lawsuits which silence critics and interfere with public participation in matters of public interest. A person bringing a SLAPP (the ‘SLAPP pursuer’) is not necessarily looking for a legal victory in court. Rather, their aim is often to exhaust their targets (physically, financially, and emotionally) so that they do not speak out against them.

This is an abuse of the legal process that not only affects the immediate target of the SLAPP, but also has a ‘chilling effect’ on others and ultimately interferes with the right to know as it means that information in the public interest is restricted.

Defining the ‘right to know’

Arguably, we can only fully exercise fundamental rights like the right to freedom of expression and the right to vote if we have access to information. Without information, it is difficult to develop informed opinions that advance expression and public debate. To fully participate in democratic life, we must understand what is happening and be able to provide oversight of our elected leaders. In other words, we have a ‘right to know’, and that right is necessary for the enjoyment of other rights.

For the above reasons, access to information is increasingly considered to be a human right, although the extent to which it is protected in law varies from one jurisdiction to another.

For example, the 2006 decision by the Inter-American Court of Human Rights (IACtHR) in Claude Reyes v Chile recognised that access to information in the public interest is necessary to support public participation in a democratic society.

In 2016, the Grand Chamber of the European Court of Human Rights (ECtHR) held in Magyar Helsinki Bizottság v Hungary that Article 10 of the European Convention on Human Rights (ECHR) includes a right to seek information. However, this right is limited to those performing social watchdog functions.

Following this reasoning, the UK Upper Tribunal (Administrative Appeals Chamber) concluded in Moss that Article 10 does not create a general right to request information from a public authority.

Therefore, whilst it cannot be said that a general right to access to information is legally protected under human rights law in the UK, it is a right that has been conferred by statute, i.e. the Freedom of Information Act 2000 (FOIA) and the Freedom of Information (Scotland) Act 2002 (FOISA). These Acts allow the public to request information from public authorities and requires those authorities to make specific categories of information proactively available.

But the ‘right to know’ goes even further than this statutory framework and the types of information that can be obtained via FOI requests. It refers to the idea that people have the right to know how they are governed and the right to informed participation in the matters that affect them and their communities. Protecting the right to know requires not only robust FOI laws, but also a broader culture of transparency that allows power to be held to account without fear of retribution.

SLAPPs and the right to know

SLAPPs clearly interfere with the public right to know because they limit the information that enters the public domain, in both direct and indirect ways.

Take, for example, a journalist who is threatened with a defamation lawsuit for reporting on financial misconduct within a private company. Even though she knows it is a meritless lawsuit, neither she nor her publisher has the time or the financial resources to fight the claim. At the urging of her publisher, the journalist reluctantly agrees to drop the story. After hearing about the journalist’s experience, other journalists are also cautious when criticising the company, especially those who do not have the support of a well-resourced employer to back them up.

The threat of the lawsuit had a direct impact on the journalist because her reporting was silenced by the company. Because others fear similar action, the story remains untold, and the public’s right to know about the company’s wrongdoing is lost.

So what can be done to stop SLAPPs? This is one of the overarching questions we examine at the University of Aberdeen’s Anti-SLAPP Research Hub.

We argue that both legislative and non-legislative measures are needed. This includes dedicated anti-SLAPP legislation to deter SLAPP claims, greater awareness among the legal profession on SLAPPs, and stronger penalties for lawyers who violate their ethical obligations by facilitating abusive lawsuits.

Recent legislative measures like the Economic Crime and Corporate Transparency Act 2023 (which applies to England and Wales) and the Defamation and Malicious Communications (Scotland) Act 2021 are not sufficient to deter SLAPPs, nor were they designed to be.

As SLAPPs can be brought under different legal causes of action, a dedicated anti-SLAPP law should follow the Council of Europe’s Recommendation on countering the use of SLAPPs. This includes recognising that SLAPPs are not confined to specific types of claims or targets.

Moreover, an effective anti-SLAPP law should include a mechanism for the early dismissal of clearly unfounded claims, place the burden of proof on the party bringing the SLAPP suit to demonstrate that it is not an abuse of process, and provide for adequate remedies.

Doing so will not only protect SLAPP targets, but also the public’s right to know.

Dr Erin Ferguson is a lecturer at University of Aberdeen School of Law