The Model Anti-SLAPP Law: an overview

Following the Government's response to the SLAPP consultation in the summer, the UK Anti-SLAPP coalition (a working group that includes English PEN, the Foreign Policy Centre and Index on Censorship, "the Coalition") has this week published a model Anti-SLAPP law, which has been endorsed by a collection of free speech and anti-corruption organisations, journalists, editors and lawyers.

The full model law can be read here, but here's a breakdown of the key points.  

SLAPPs, or "Strategic Lawsuits Against Public Participation" do not yet have a formal statutory definition in the UK being a term coined in the US but now prevalent, throughout North America and Europe. SLAPPs have been described by the UK Government as "an abuse of the legal process, where the primary objective is to harass, intimidate and financially and psychologically exhaust one’s opponent via improper means" in order to "evade scrutiny in the public interest". The main aims of the model law are to dispose of SLAPPs quickly whilst keeping the costs for the target of a SLAPP to an absolute minimum and deterring SLAPP cases by penalising claimants with adverse costs consequences. This is intended to be achieved in the following ways: 

1. Defining "an act of public participation" and an "abusive lawsuit against public participation"

Acts of public participation are effectively any expression on matters of public interest, with public interest being non-exhaustively defined as any matter which relate to issues such as public health, activities of persons or entities in the public eye, allegations of iniquity relating to fraud, political misconduct and similar issues.

In order to all the court to identify a SLAPP without evidence of the mental state of the claimant, the model law defines a SLAPP as proceedings brought against an act of public participation that have "some" objectively ascertainable "features" of an abuse of process. These features have been non-exhaustively defined and include: the deployment of disproportionate resources having regard to the nature of the claim and remedies available to the Claimant, the Claimant's general litigation conduct such as the choice of jurisdiction, excessive or aggressive correspondence, disproportionate disclosure requests, failures to engage in pre-publication correspondence and refusals to engage in ADR. 

2. Early disposal of proceedings

The Coalition say in their preface to the model law that the test for summary judgment (i.e. allowing cases with a "reasonable prospect of success" to proceed to trial) provides too low a bar for Claimants to overcome, particularly where a claimant's pleaded case is taken to be true and wider context is ignored. Instead, the model law directs that the court "must" dismiss abusive lawsuits against public participation unless the Claimant satisfies the judge of a two-limb test that:

a. The claim is "likely" to prevail at trial (as opposed to having a real or realistic prospect of success) to succeed; and
b. The harm suffered by the Claimant is sufficiently serious to outweigh the public interest in dismissing the case before trial.

If an application is made for early disposal of the proceedings, the whole claim is stayed pending final disposal of the application.

3. Adverse costs consequences 

If Defendants are able to have the claim disposed of summarily using the mechanism described above, the usual costs order would, under the model law, be costs on a "full indemnity basis", potentially together with exemplary damages awarded to the Defendant in a sum considered appropriate by the Court to deter the Claimant's conduct being repeated in future. 

4. Disclosure 

The model law proposes that in any proceedings brought in relation to a matter of public participation (i.e. not only abusive lawsuits against public participation), there should be strong presumption that disclosure on behalf of the Defendant should be limited to "known adverse documents" and key documents on which the parties have relied or are necessary to understand the claim and/or defence. 

In any case, under the model law the Court must ensure that the Defendant's disclosure obligations are reasonable and proportionate, having regard to the resources (or lack thereof) available to the Defendant, the potential chilling effect on freedom of expression, and nature of the issues in the proceedings, amongst other factors. 

Comment

This model law appears to address the key issues and current failures seen in SLAPPs: the imbalance of resources between the parties and the high bar for Defendants to meet in making an application for summary judgment if they are to dispose of potentially abusive proceedings without incurring the costs of defending the claim in full or conceding their Article 10 rights to publish an apology or correction simply to avoid the costs of oppressive litigation. The aspiration is that England and Wales become a jurisdiction where important public journalism, and so public debate, cannot be so easily prevented by significant wealth, litigation tactics and the mere threat of ruinously expensive litigation.

The Government's response to the SLAPP consultation earlier this year suggested that a costs protection regime could be introduced under secondary legislation (i.e. as part of reform to the Civil Procedure Rules). Costs protection is essential in order to protect Defendants' rights if they are faced with SLAPPs. A possible fixed costs regime to ensure that Claimants do not continue to use their unlimited resources on disproportionate issues, and sanctions (costs or otherwise) for failures to comply with the Pre-Action Protocols as we so often see in SLAPPs, must be introduced at the earliest opportunity.

RPC's media and data disputes team has significant experience in acting for Defendants in relation to SLAPP litigation. Get in touch with us at Anti-SLAPP@rpc.co.uk.