Strategic lawsuits against public participation legislation

Written by Ahsan Mustafa, Lawyer, Banking Litigation at Aberdein Considine

Strategic Lawsuits Against Public Participation legislation – what is the position in Scotland?

Roger Mullin, former Member of Parliament for Kirkcaldy and Cowdenbeath, lodged a Petition at the Scottish Parliament in September 2022 calling for review and amendment of the law to prevent the use of Strategic Lawsuits Against Public Participation, also known as “SLAPPs” to stop Scotland becoming a litigation tourism hotspot. However, the need to strike a balance between protecting freedom of expression and the right to defend your reputation was always at the heart of discussion on the law on defamation in Scotland, in particular the Scottish Government’s public consultation on defamation in 2019 following the Scottish Law Commission’s report in December 2017.

The term ‘SLAPP’ was coined in American academic circles and refers to litigation (or threats to litigate) by powerful individuals and corporations with the intent to silence criticism by legal intimidation with the threat of being landed with tens of thousands of pounds in legal fees (often more). The targets of SLAPPs include news organisations, independent journalists, writers and publishers, but also a wide range of public watchdogs, including whistleblowers, NGOs, campaigners, community groups and sexual abuse survivors. The National Union of Journalists referred to this as abusive litigation by those with ‘thin skins and thick wallets’. However, the reality for investigative journalism can be far more sinister as is shown by the assassination of Daphne Caruana Galizia, a Maltese investigative journalist who separately had been the victim of numerous international SLAPPs including from the UK leading the European Commission to introduce an anti-SLAPP Directive known as “Daphne’s Law”. A recommendation on countering SLAPPs is also being approved by the Council of Europe, the guardian of the European Convention on Human Rights.

Financial harm can also be compounded by psychological stress and reputational damage of being at the receiving end of a lawsuit which can cast a shadow on a journalist’s integrity and which can lead to disciplinary action and loss of employment. Furthermore, the time and resources taken in defending a lawsuit may inhibit critical reporting and journalism given the financial viability of media organisations and the fact that many journalists are freelance and they or their publishers may prefer not to run a story at the risk of a costly potential lawsuit or the costs of expensive legal advice. This can threaten freedom of speech and expression and, ultimately, the democratic right to hold those in positions of power and influence accountable. The discouragement of the legitimate exercise of natural and legal rights by the threat of a lawsuit is referred to as the “chilling effect”. Interestingly, the 2019 consultation sought views on making unjustified legal threats before legal action an actionable delict – an issue which was not raised as a part of the Scottish Law Commission’s report. Journalists, publishers and broadcasters often argue that the “chilling effect” is most obstructive to freedom of expression at this stage and not if or when court action is initiated.

SLAPPS are an abuse of the legal process and have commonly been deployed using claims such as defamation, privacy, data protection and intellectual property - though there are other examples as well. The law of defamation was reformed in 2021 in the form of primary legislation. The new legislation was the Defamation and Malicious Publication (Scotland) Act 2021 and a stated policy objective was to “strike a more appropriate balance between freedom of expression and the protection of individual reputation”. Prior to the 2021 Act, the last substantive statutory reform of defamation law was in 1996 with the enactment of the Defamation Act 1996. Prior to the 2021 Act, the definition for defamation was as used in the English House of Lords case of Sim v Stretch [1936] 2 All ER 1237.

In its response to the 2019 consultation, Channel 4 stated its view that “freedom of expression should be embraced and more protection to this freedom should be catered for in the Bill [Defamation and Malicious Publication (Scotland) Bill]". Channel 4 also stated that “the Bill attempted to balance the two rights and with the threshold tests and inclusion of the defences, the Bill maintains the position that the law will allow the debate between the two to continue whilst keeping interference to a minimum”.

The risks of the abuse of defamation law have been long recognised in the British legal systems, with the Scottish concept of qualified privilege providing a defence to the publisher of a statement in circumstances where there was a legal, social or moral duty of interest to make the publication and the Derbyshire Principle in English defamation law which prohibits public bodies from bringing defamation action (now encapsulated in section 2 of the 2021 Act). There is also the ‘serious harm’ test in the 2021 Act which can act as a procedural hurdle. However, there was no dedicated anti-SLAPPS legislation which enables an abusive lawsuit to be knocked out early by the courts. Early dismissal of lawsuits is considered the cornerstone of anti-SLAPP legislation amongst other jurisdictions and this is something which Scotland may model. The basis of this may be that a claim is manifestly unfounded, unreasonable or that there may have been multiple similar claims already.

In November 2022, the Solicitors Regulation Authority (SRA) in England and Wales issued a warning to solicitors not to threaten or file ‘unmeritorious’ claims or engage in intimidation or oppressive tactics and to balance their clients’ interests with their duty to the courts and to uphold the rule of law. English and Welsh solicitors are further warned they have an obligation to identify a SLAPP and decline instructions accordingly. Particular care is advised where a publication is likely to engage the public interest and to be mindful of the imbalance of power between parties, i.e. a wealthy individual or corporation against an academic or an investigative journalist, thus a client attempting to evade lawful scrutiny.

On the week beginning Monday 16^th December 2024, former Chancellor of the Exchequer, Nadhim Zahawi’s solicitor is being prosecuted by the Solicitors Regulation Authority for alleged misconduct in relation to a libel threat which has been described as a SLAPP.

Section 195 of the Economic Crime and Corporate Transparency Act 2023, which only applies to England and Wales, defines the characteristics of a SLAPP in the context of economic crime for the first time. The 2023 Act, allows courts to dismiss lawsuits where the court has determined that they are a SLAPP and where the claimant fails to show they are likely to succeed. The courts can also make cost provisions to give a degree of protection to defendants. However, the provisions are limited to reporting of economic crime and deploy a subjective test to determine the intentions or motivations of the filer - this may undermine the Act’s efficacy.

Further anti-SLAPP legislation (Strategic Litigation Against Public Participation Bill) aimed against “corrupt elites” and “oligarchs”, “allowing SLAPPs to be rapidly thrown out by judges and making them less effective as a tool with which to threaten free speech advocates” was being considered by the UK Parliament (for England and Wales) through a Private Members Bill put forward by Wayne David MP prior to the July 2024 general election. While it had Government support and had been scrutinised by the Bill Committee, it was discarded when Parliament was dissolved for the July 2024 election. The Labour Government has confirmed its opposition to SLAPPs but is yet to bring forward any legislative measure to address them.

There have been five evidence sessions conducted by the Citizen Participation and Public Petitions Committee at the Scottish Parliament in relation to Roger Mullin’s petition on reforming the law relating to Strategic Lawsuits Against Public Participation. The Scottish Government has committed to Roger Mullin’s petition on 1^st May 2024 and will now put forward a consultation prior to legislating.

Roger Mullin spoke to the Journal of the Law Society of Scotland and stated “I have been enormously encouraged by the continuing dialogue I am having with the ministerial team drafting the consultation.  I know that the minister shares my concern to protect legitimate free speech and ensure the public’s right to know is given the protection it deserves in a democratic society. I hope the consultation will attract a wide range of participants and allow us to move forward to appropriate legislation for Scotland”.

Written by Ahsan Mustafa, Lawyer, Banking Litigation at Aberdein Considine. Ahsan gave evidence on behalf of the Law Society of Scotland at the Scottish Parliament in relation to reforming the law relating to Strategic Lawsuits Against Public Participation.

(with thanks to Dominic C. Harrison, Head Lawyer, Programme Compliance, Legal & Compliance, Channel 4 Television Corporation.)