SRA issues Warning Notice on solicitors' involvement in SLAPPs
SLAPPs (aka 'Strategic Lawsuits Against Public Participation') is a term coined in the USA. They are becoming the object of increasing concern over here too.
Regulatory and legislative interest
The Government recently called for evidence on the topic (March 2022). The Solicitors Regulation Authority ("SRA") first warned about involvement in SLAPPs in advice to firms soon after the invasion of Ukraine. It also published its Conduct in Disputes guidance which referred to SLAPPs (March 2022). The SRA has now taken further steps to discourage solicitors' involvement with them, in the form of a Warning Notice and new information for those who might be the target of SLAPPs (November 2022).
How the SRA defines SLAPPS
Despite the fact that no consensus emerged from the responses to the Government's March 2022 call for evidence on an appropriate definition for SLAPPs, the SRA has nonetheless pressed ahead with one in its Warning Notice, saying they are "alleged misuse of the legal system, and the bringing or threatening of proceedings, in order to harass or intimidate another who could be criticising or holding them account for their actions and thereby discouraging scrutiny of matters in the public interest."
The SRA goes on to note that a key purpose of a SLAPP is "to prevent publication on matters of public importance, such as academic research, whistleblowing or campaigning or investigative journalism". They usually involve defamation or invasion of privacy actions.
Lessons from the Warning Notice
The SRA expects firms to be able to identify SLAPPs, decline to act, and advise clients against pursuing a course which amounts to abusive conduct.
The SRA lists 'red flags' which can highlight the existence of a SLAPP, including:
- where the target is a proposed publication on a subject of public importance, such as academic research, whistleblowing or investigative journalism
- where firms' instructions are to act solely in a PR capacity
- where the client asks that the claim is targeted only against individuals (where other corporate defendants are more appropriate), or where a claim is brought under multiple causes of action or jurisdictions, potentially unconnected with the parties or events
The Warning Notice also lists behaviours associated with SLAPPs, including sending an excessive number of letters, and making unduly aggressive or intimidating threats. The SRA emphasises that an important factor is whether the claim is meritless or bound to fail.
Lawyers will also need to consider the Warning Notice when taking on clients, and taking key strategic decisions, specifically in contentious matters.
The importance of letter-headings
The Warning Notice features a lengthy section on labelling correspondence, and the dangers of misleading the vulnerable or unrepresented through misleading labels. The SRA refers to the example of marking correspondence confidential or without prejudice, where this is not the case. Under the Notice, firms should consider what proper reasons they have for labelling correspondence in these ways and think about whether further explanation is necessary for the uninformed. Where a recipient indicates they wish to publish correspondence they have received, they must not be misled as to the consequences. The Warning Notice confirms that where there is a specific legal reason which prevents this, recipients of legal letters should be able to generally disclose that they have received them.
Ironically, and at the time of writing, the SRA continues routinely to label its production notices issued under s44B Solicitors Act 1974 "Strictly private and confidential".
It is clear that the SRA is taking this topic very seriously, and more is to come. The SRA says it is currently investigating 29 cases where firms might be involved in SLAPPs, and has been working with the Foreign Policy Centre and Coalition Against SLAPPs in Europe to request details of potential cases. As previously reported, the SRA is also looking for statutory designation as a "prescribed person" under the Public Interest Disclosure Act, to encourage whistleblowers.
We nonetheless have some worries about the SRA's approach here. The first worry concerns definitions. As is obvious from the Government's call for evidence, the concept of a SLAPP is not an easy one to define. It raises complex issues and tensions, e.g. between a lawyer's duties to the court and to a client, between the rich and the not-quite-so-rich (think oligarch vs freelance reporter), and between competing public interests associated with freedom of speech, rights of privacy, and so on. We wonder if the SRA has acted a little too swiftly in issuing a Warning Notice, at a time when the Government grapples with defining terms and possible legislation in this area.
A second concern is that the language of the Warning Notice will be co-opted by the SRA's enforcement arm and applied more widely than the context suggests should be the case. SLAPPs are about public participation, about stifling investigative journalism and whistleblowing. But numerous parts of the Warning Notice could be interpreted as applying more generally to litigation behaviour. That could be problematic, as general litigation will not necessarily have any element of "public participation". It remains to be seen how this Notice will be interpreted.
RPC's Media and Disputes Team has significant experience in acting for Defendants in relation to SLAPPs litigation, and has been regularly blogging on the topic, most recently on the UK Anti-SLAPP coalition's model Anti-SLAPP law. Get in touch with us at Anti-SLAPP@rpc.co.uk.