Government consultation on SLAPPs – threat to freedom of expression or political posturing?
This article explains the Government consultation on SLAPPs.
Deputy Prime Minister Dominic Raab MP is considering responses to an urgent call for evidence regarding the perceived threat of SLAPPs – Strategic Lawsuits against Public Participation.
The consultation paper claims that SLAPPs are a growing issue in England and Wales, and that defamation and other media law claims are being used inappropriately by individuals and corporations to silence legitimate criticism. The consultation paper assumes that SLAPPs are a problem, without setting out a basis for this, or even providing a definition of a SLAPP. There is clearly a risk of putting the cart behind a horse by legislating to solve a problem without first understanding and defining it.
The consultation is predicated on the assumption that hiring defamation lawyers is a privilege which can only be afforded by the wealthy and powerful. Not only is this false, but the position is often reversed, with media claims being brought by individuals with limited financial means against corporations with comparably endless resources. Taylor Hampton represents many phone hacking victims who inadvertently found themselves the victims of serious breaches of their human rights by large corporations headed by billionaires. This disparity, and the importance of ensuring that victims can obtain legal representation, was acknowledged in the Leveson Inquiry.
The trend of media claims being used by individuals of limited means to defend their rights against large corporations, and the disparity in resources between claimants and defendants in these cases, will only continue to grow, as individuals seek to defend their rights against social media companies. This is all the more the case given the Supreme Court’s decision in Lloyd v Google has seriously limited the potential for collective actions against big tech companies.
In any event, effective legal mechanisms already exist which seek to prevent abuses of the nature described in the consultation paper. For example, the rules which govern litigation in England and Wales grant the Court the inherent jurisdiction to strike out unmeritorious claims. The Court may also dismiss a case as an abuse of process even if it has reasonable grounds if any damage caused was minimal and the costs of vindication would be disproportionate. And provided the merits of the claim justify it, Taylor Hampton will readily consider acting for the Claimant on a no win no fee agreement, whoever the Defendant is.
The consultation paper also fails to explain how it will sit with reform of the Human Rights Act. It seems that it will necessarily overlap with this.
The Ministry of Justice is currently considering submissions provided in response to its Call for Evidence. Taylor Hampton has provided a detailed response to this. We hope that the Government will adopt a more considered approach to this perceived issue and ensure that any anti-SLAPP law is not drafted in a manner that will hurt victims of press intrusion.
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