SLAPPs

Following concern at how wealthy individuals, many with Russian connections, had used the threat of litigation to stifle criticism and investigative journalism, ECCTA introduces measures to prevent SLAPPS: Strategic Litigation Against Public Participation. It provides the first statutory definition of SLAPPS and requires changes to the Civil Procedure Rules to enable courts to hear applications to dismiss such claims.

For a claim to be a SLAPP under ECCTA, it must have the effect or intended effect of restraining the defendant’s freedom of speech in the context of information relating to a reasonable suspicion of economic crime. The litigation must also be conducted in a way intended to cause the defendant harassment, alarm, distress, expense or other harm “beyond that encountered in the course of properly conducted litigation”.

The definition of a SLAPP is narrower than some had sought, being limited to where accusations of economic crime are present. Attempts to silence those seeking to highlight human rights abuses, environmental damage and other issues of public interest will not be caught by this change. However, a private member’s bill seeking to widen this definition to any matter of public interest is currently at the committee stage in Parliament. This revised definition is still thought by some to be ineffective due to the subjective nature of the definition.

Amendments to the CPR are currently awaited, but it is expected that they will comply with the legislation by making additions to the existing rules on the striking out of claims. Judges will then face some difficult decisions on whether certain defamation claims are legitimate, or demonstrate an intention to use litigation tactically to thwart public debate.