“Slapps”: the lawsuits that silence freedom of expression

What prompted this new plan? In a word, Ukraine. English defamation law is notoriously kind to wealthy accusers who want to silence their critics. The problem of “slander tourism” – foreigners suing in London – has been known for decades. But a series of recent cases brought up by Russian oligarchs have brought the problem to the fore, along with the broader problem of London law firms helping to ‘wash’ the reputations of shady overseas clients.

Last month, the Justice Department launched a consultation on “slapps,” a US term that stands for “Strategic Lawsuits Against Public Participation.” These are defined as defamation or privacy lawsuits brought by wealthy corporations or individuals “where the primary objective is to harass, intimidate, and financially and psychologically exhaust the opponent by unreasonable means.” Such lawsuits, according to the consultation paper, are “an abuse of legal process” and “a threat to freedom of expression within the law”.

How friendly is English defamation law to plaintiffs?

First, there is the question of the burden of proof. Under English law on defamation, there is a presumption that defamatory words – something said or written which damages a person’s reputation – are false, so that the burden of proving that the words are true or otherwise reasonable lies with the accused. (By contrast, in the US, the First Amendment’s protection of free speech means that the burden of proof lies with the applicant.)

The second problem is that defamation cases are so expensive. Even preliminary legal arguments can cost tens of thousands of pounds. A full trial can cost hundreds of thousands or even millions. The loser bears most of the cost. Understandably, this prompts many publishers to resolve complaints regardless of the merits, and encourages many to simply avoid certain issues to avert legal troubles. Defamation laws have a “deterrent effect” on freedom of expression.

How is this affecting journalism?

Two recent cases illustrate the sometimes devastating effects of such suits. In 2020, Catherine Belton, a former Moscow correspondent, published Putin’s peoplea highly acclaimed synopsis of the criminal corruption of the current Russian regime.

After Kremlin critic Alexei Navalny recommended the book last year, Roman Abramovich, three other Russian oligarchs, and Rosneft, the Russian oil company, almost simultaneously filed lawsuits against Belton himself and her publisher, HarperCollins. Eventually, after relatively minor corrections, the cases were discarded or settled. Compensation was not awarded.

But the cases – which never got to a full hearing – cost the publisher £1.5million. Tom Burgis, author of the book Kleptopia: How dirty money is taking over the world, also published by HarperCollins, was similarly attacked by the Eurasian Natural Resources Corporation, a Kazakh mining company. A judge dismissed the case at a preliminary hearing in March this year.

What wider implications does this have?

All legal systems must balance freedom of expression with protection of reputation. But even after a series of libel law reforms, Britain leans heavily towards the latter compared to other free countries; The US expressed disapproval when the UK passed legislation in 2010 rendering English libel judgments unenforceable in America.

In 2020, think tank Foreign Policy Center examined pressures on investigative journalists around the world and found that the UK was “by far the most common” country of origin for slapping, and almost as many as all EU states and the United States together. There is no doubt that this has led to self-censorship by British publishers. Cambridge University Press declined publication Putin’s kleptocracy US political scientist Karen Dawisha for fear of legal disputes.

What is the government doing about it?

Secretary of State Liz Truss reportedly last month urged government lawyers to find “literally any avenue” to crack down on slappers. The consultation paper released by Justice Secretary Dominic Raab shortly afterwards threw the issue out the sink in terms of possible solutions.

It proposed a series of new reforms to the defamation law, including expanding the available defenses and requiring, as in the US, that claimants must show “actual malice” (i.e. the accused either knows the testimony was false or reckless). It also proposed caps on reimbursable expenses, and most radically proposed passing anti-slapping laws like those already in place in the US and Canada.

How could an anti-slapping law work?

The consultation paper raises the possibility that in slapped cases, the burden of proof should lie with the plaintiff rather than the defendant: they would have to prove that the defamatory statement is untrue. Caroline Kean, representing Catherine Belton and Tom Burgis, argues that such legislation should go further.

Judges should decide at the outset of a case whether it is public interest journalism – that is, whether the person or entity is worthy of scrutiny. If so, the case should be stopped and resolved by providing a clear right of reply and correcting any factual error.

So can we expect progress?

Not necessarily. Slander reform has been a painfully slow process. Even finding a legal definition of a slapp would be difficult. “An individual’s slapping case is another individual’s legitimate attempt to defend their reputation and/or privacy rights,” says legal commentator David Allen Green.

Many lawmakers are also reluctant to give too much latitude to the British media, with their long history of invasions of privacy and occasional recourse to illegality. Ironically, however, due to the high cost, the Defamation Act was never effective in gaining redress for ordinary people through the press. Slander is the archetypal law of the rich man.