‘The Pariah State that Allows Lawfare’

‘The Pariah State that Allows Lawfare’ UK Urged to Pass Anti-SLAPP Law

The UK has an opportunity to lead the way with a national anti-SLAPP law, or risk falling behind the European Union, a coalition of activists, lawyers and journalists warn

The UK Government must urgently adopt legislation against the use of Strategic Lawsuits Against Public Participation (SLAPPs) or risk being left behind by the European Union and the USA, said participants at a two-day anti-SLAPP conference in London this week. 

SLAPPs are often used by wealthy and powerful individuals and organisations to silence journalists and civil society organisations from exposing wrongdoing, and have a chilling effect that allows for wrongdoing to flourish in the shadows. The UK is particularly vulnerable to SLAPP lawsuits, including litigation against journalists not even based in the country, due to the country’s libel and defamation laws. 

US Journalist Scott Stedman is subject to a SLAPP suit in the UK, due to a technicality that allowed him to be sued in the English courts. He told Byline Times: “Even though I have never been to the UK and the overwhelming majority of my readers are from the US where I live, I’m forced to battle this lawsuit in a jurisdiction completely foreign to me. On a practical level, it has affected my health”.

The European Union (EU) released a draft of its anti-SLAPP law earlier this year, to help prevent legal bullying by corporations, public officials, and powerful individuals. Individual US states have anti-SLAPP legislation in place, although there is currently no federal law focused on this form of lawfare. In September this year, Representative Jamie Ruskin proposed federal legislation designed to “stop wealthy forces from weaponizing the law to protect selfish interests”. 

The Ministry of Justice (MoJ) has consulted on introducing anti-SLAPP legislation, confirming that “SLAPPs are a recognisable and pernicious form of litigation which seeks to silence, intimidate, and harass opponents” which “silence criticism and investigation conducted in the public interest”. It intends to “introduce a new statutory early dismissal process to strike out SLAPPs and avoid lengthy SLAPP litigation”. 

The UK therefore has an opportunity to be ahead of the curve by introducing a national law protecting journalists and civil society organisations against SLAPPs – but a failure to implement a law could mean the country is left behind its peers. 

Media and data dispute specialist at law firm RPC, Rupert Cowper-Coles, noted at the conference “if we don’t do something about this now, we’re going to be left behind. We’re going to be the problem state, the pariah state that allows lawfare”.

Britain’s departure from the EU means that those impacted by SLAPPs would be excluded from any Europe-wide legislation.

“The London courts, as opposed to other European courts, are the courts of choice in cross-border SLAPP cases,” Sarah Clarke, Head of Europe and Central Asia at Article 19, told Byline Times. Clarke explained that if the EU passes a law, but the UK fails to legislate, “journalists and civil society organisations here would be less protected than their European peers”.  

The UK is known as as the “SLAPP tourism capital of Europe” as England’s claimant-friendly defamation laws make it an attractive place for the wealthy to bring cases against their critics. And while countries like Poland and Italy are more likely to see domestic SLAPP cases, including those brought by politicians, in the UK the claimants are more likely to be foreign individuals and organisations. 

The Government also “intends to pursue other reforms which do not require primary legislation, but which would use the statutory definition and criteria as the basis for SLAPPs to be made subject to a special regime” with the focus of the reforms to “be a formal costs protection scheme”.

The Anti-SLAPP Coalition has drafted its own model law, which it urges the MoJ to adopt. Coalition member Charlie Holt told the conference that the progress made in the past 12 months, including the MoJ consulting on a law, shows that “we can be ambitious about this. The MoJ may fall short but it has identified the main components for an anti-SLAPP law”.

---

A Chilling Effect

SLAPPs are controversial not least for the chilling effects they have on journalists, adding financial and mental pressure that can lead to investigations being spiked due to legal threats. This weaponization of the law against media freedom highlights the necessity of urgent implementation of anti-SLAPP laws in the UK. 

Investigative journalist Carole Cadwalladr was sued as an individual following comments she made about leading Brexiteer Arron Banks during a TED Talk. While the Judge said the suit itself was not a SLAPP case – something disputed by legal experts and press freedom organisations alike – the legal battle forced her to crowdfund her legal fees. Losing the case would have cost her hundreds of thousands of pounds. 

Banks targeted Cadwalladr as an individual, something he had in common with many SLAPPs. This has the effect of isolating the journalist from their publication, which was the case for Cadwalladr who, when describing her ordeal at the conference, stated publicly for the first time that, “at an institutional level, the Guardian and the Observer fundamentally let me down”. 

Stedman noted that, on top of the personal intimidation he felt in the lead up to his ongoing case, many journalists reporting on his case have also received legal threats. This creates, explained Stedman, a “ripple effect” that stifles discussion about wrongdoing and silences conversation about the impact of these suits. 

---

The Stories Left Untold

One of the most concerning impacts of SLAPPs was how the lawsuits prevent reporting of serious sexual violence, according to numerous speakers at the conference. 

The UK’s libel laws make it difficult to report on serious sexual offences, explained The Times’s Gabriel Pogrund, meaning journalists often have to focus on bad, rather than criminal, behaviour, when seeking to expose patterns of sexual misconduct. This is in contrast to the US, where free speech is protected by the First Amendment. 

Former BBC journalist and editor at the The Bureau of Investigative Journalism Meirion Jones shared the difficulties journalists faced in exposing serial child abuser Jimmy Savile due to libel threats, with his crimes only coming to light after he died. He told the audience how he believed thousands of individuals would not have been victimised, and hundreds of women would not have been raped, if reporters had not felt silenced by legal threats. 

As well as the ways in which the laws are used to protect abusers, misogyny in the courts can mean female victim/survivors and journalists are prevented from speaking out. Baroness Helena Kennedy KC explained how “women never have an easy time in defamation courts…the same thing happens there as happens in other parts of our legal system, which is to find ways of denigrating women, to find ways of cross-examining women so that they lose the trust of the court on matters that are often irrelevant.” 

The laws mean that alleged sexual predators are able to act with impunity and free from scrutiny, with journalists having to drop investigations due to the financial, practical and emotional pressure of lawfare. Five years on from the MeToo revelations that led to the arrest and imprisonment of serial sexual offender Harvey Weinstein, women are still silenced by powerful men, and journalists are still prevented from exposing their crimes.