Anti-SLAPP legislation in the UK: where are we now?

When Maltese journalist Daphne Caruana Galizia was assassinated in 2017, she was facing almost 50 libel suits targeting her investigative journalism. Known as strategic lawsuits against public participation (SLAPPs), unfounded or otherwise abusive legal claims tend to silence critics and chill freedom of expression by exposing SLAPP targets to the prospect of a lengthy and expensive process of defending legitimate work.

In February this year, the European Parliament overwhelmingly voted in favour of a new directive to counter SLAPPs. The directive – also known as ‘Daphne’s Law’ – will make it easier for courts to dismiss unfounded claims at an early stage, to shift costs to SLAPP claimants, and to discourage ‘forum shopping,’ the practice of searching for the jurisdiction most favourable to the SLAPP instigator. As the goal of a SLAPP instigator is not necessarily to succeed in court, but rather to harass their targets by abusing the legal system, these provisions are an important part of a package of measures intended to shield public participation from abuse of process.

The situation in the UK

In contrast to the EU, however, there is currently no dedicated anti-SLAPP legislation in the UK. That could soon change following the introduction of the Strategic Lawsuits Against Public Participation Bill, a private members’ bill sponsored by Wayne David MP. The Bill, which applies to England and Wales, received its second reading in February 2024 and seeks to build on the anti-SLAPP provisions included in the Economic Crime and Corporate Transparency Act 2023.

The 2023 Act is a welcome step in the campaign to stop SLAPPs as it sets out a statutory definition of ‘SLAPPs’ (Section 195(1)) and makes it possible for courts to strike out claims before trial if the claimant cannot demonstrate that it is more likely than not that the claim will succeed at trial (Section 194(1)(b)). While the Act has been described as the UK’s first anti-SLAPP law, it is important to note that it only applies to SLAPPs brought in England and Wales, and even then, only when in relation to reporting on economic crime, and subject to exceedingly stringent criteria. It is therefore a limited law, which leaves most SLAPP claims outside its scope and SLAPP targets unable to protect themselves against unfounded lawsuits.

The SLAPP Bill therefore aims to extend protections against other types of claims; for example, to environmental campaigners who have been threatened with unfounded claims for speaking out against corporate polluters, or journalists revealing the tax affairs of politicians.

In addition to these legislative developments, the Solicitors Regulation Authority (SRA) issued a warning notice to its members in November 2022, explaining their professional obligations to avoid bringing abusive lawsuits. The notice clarified what SLAPPs are and reminded solicitors in England and Wales that they have duties not only to their clients, but also obligations to uphold the rule of law and to conduct themselves in ways that maintain public trust in the legal profession and the legal system. Non-legislative interventions of this nature serve to raise awareness of SLAPPs among the legal profession, a crucial constituency in the SLAPP machinery whose judiciousness in asserting clients’ unfounded claims would be welcome. More broadly, they indicate to the public that the right to legal representation does not include a right to abuse process and to suppress information and expression.

The situation in Scotland

Meanwhile, in Scotland, progress has been slower. The Scottish government has argued that dedicated anti-SLAPP legislation in Scotland is not necessary, as the Defamation and Malicious Publications (Scotland) Act 2021 has already introduced measures to deter pursuers from bringing unfounded defamation claims. However, defamation is only one legal cause of action through which public participation can be quashed. Other grounds include data protection, breach of confidence, and nuisance. Moreover, the 2021 Act does not include a sufficient mechanism for early dismissal, a central tool in robust anti-SLAPP laws.

In response to the need for stronger anti-SLAPP legislation in Scotland, former MP Roger Mullin introduced a petition in 2022 to call on the Scottish government to undertake a review of SLAPPs with the goal of legislative reform. The Scottish Parliament’s Citizen Participation and Public Petitions Committee considered the petition in October 2023 and has continued to gather evidence. However, no concrete steps have yet been taken to introduce a formal bill in Scotland, potentially creating a loophole in both the UK and Europe’s anti-SLAPP defences.

Conclusion

A stronger commitment to anti-SLAPP legislation throughout the UK is needed. While there have been promising developments in the past two years, the UK still lacks the robust legislation and regulatory environment necessary to stop SLAPPs. Earlier this year, the Council of Europe Parliamentary Assembly adopted a resolution calling on member states to legislate against SLAPPs. This is part of an emerging international consensus that anti-SLAPP laws are necessary for the upholding of international human rights obligations and the rule of law. It is time for the UK to take more seriously its duty to uphold and advance those international obligations.