SLAPPs are lawsuits that are used, often by wealthy and powerful people, to prevent the publication of information that could be in the public interest, normally targeted at journalists.

Researchers from the University of Birmingham and the University of Leeds have conducted the first study to examine the efficacy of policy and legislative responses to SLAPPs.

The research, which has been published in the Journal of Media Law, argues that the early disposal mechanism prescribed in the Economic Crime and Corporate Transparency Act 2023 (ECCTA) is a “false dawn” for tackling SLAPPs, and sets out an alternative model for a novel dedicated SLAPP early disposal mechanism.

Dr Peter Coe, associate professor of law at the University of Birmingham, who led the study, said: “SLAPPs are abusive legal actions or threats brought by powerful parties to suppress criticism. They allow people to weaponise the law to exploit power and wealth inequalities between parties, ultimately inhibiting scrutiny and debate on matters of public interest.

“This can have damaging impacts on freedom of speech, freedom of the press, and the state of our democracy. It is imperative for the public good, that there are robust ways to challenge and dismiss SLAPPs, but current efforts aren’t fit for the job.”

In 2023 the UK government introduced an amendment to ECCTA which added an early disposal mechanism so that judges could throw SLAPP complaints out if they did not meet certain criteria. This early disposal mechanism was added to the three main ways in which weak cases can be weeded out by the system: summary judgment, summary disposal under the Defamation Act 1996, and strikeout.

The addition was a positive step as it raised the threshold for cases slightly, and because the three existing methods were, and still are, limited and ill-equipped to deal with SLAPP claims. However, the researchers argue that there are three big issues with the early disposal mechanism outlined in the ECCTA:

• Firstly, it only deals with SLAPPs once they are beginning to be litigated. For instigators, the optimal result is achieved when the mere threat of legal action cows the target into silence or retraction.
• Secondly, the definition of a SLAPP is too narrow and rigid, only applying to economic crime. It does not tackle issues like sexual misconduct or environmental harm.
• Thirdly, the mechanism in the ECCTA requires the court to make a subjective judgement about the claimant’s state of mind. Requiring the complainant to intentionally restrain the free expression of, and cause harassment and distress to, the defendant.

Dr Coe continued: “Whilst well-intentioned, the ECCTA is not fit to deal with SLAPPs robustly and efficiently. It is too limited in its definition and timing of when it can be used to deal with these damaging cases. A new mechanism is needed if England is going to be able to deal with this harmful use of the law seriously and effectively.”

The paper proposes a new dedicated SLAPP early disposal mechanism which contains six specific features that the ECCTA (and/or any future) anti-SLAPP early disposal mechanism should have.

1. The measure should apply to all actions involving public interest speech, not just related to economic crime.
2. The measure should note or formally recognise that: (1) in most cases the SLAPP label will be deeply contested, and (2) a court may deem a claim a SLAPP if it is confident of doing so, but does not have to in order to dispose of a claim at an early stage.
   The mechanism should reiterate the courts’ and all litigants’ duties to uphold and further the overriding objective principles and affirm that SLAPP claims directly undermine such principles.
3. The anti-SLAPP mechanism must fully utilise the ten ‘SLAPP indicators’ set out in the Council of Europe’s recent Recommendation on SLAPPs.
4. In preparation for an early disposal hearing claimant firms should be required to declare to the court whether they have commissioned, made a referral to or in any way worked with a reputation management firm for the benefit of the claimant.
5. The court service will maintain a record of: (1) claims that have been formally deemed a SLAPP and subject to early disposal, and (2) claims that have been flagged as a ‘case for concern’ via the process above. The Solicitors Regulation Authority will annually review this information to monitor the firms and individual solicitors acting for claimants in such cases and may investigate professional conduct issues if deemed appropriate.
6. The researchers suggest that these features could be set out in the formal additions to the Civil Procedure Rules that the ECCTA prescribes, and in a supplementary practice direction to guide judges dealing with SLAPP cases.

Dr Coe concluded: “English law is famously weak when it comes to SLAPPs and is woefully out of step with Europe and other parts of the world on this issue. Whilst some of these measures might seem controversial, the harm to public life caused by SLAPPs cannot be understated.

“We find ourselves living in an age where trust in politicians, courts, and public institutions has never been lower. By ensuring that people cannot twist the law to their own selfish benefit, and that the public can have the information they need about important issues, maybe we can find our way to restoring some of that trust and improving our public debate.”