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SLAPPs are legal actions that are abusive and an improper use of the legal system. Typically, they are brought by corporations or individuals with the intention of harassing, intimidating and financially or psychologically exhausting opponents. Although there is a long way to go to combat the prevalence of SLAPPs, small steps have recently been taken in several jurisdictions. Our Consultant Samantha Bradley investigates.
Author: Samantha Bradley, Consultant
“I’m not worried about what people are saying. If intimidation is your game plan, I hope you have a better one.”
Colin Rand Kaepernick
Strategic intimidation: it’s just not cricket
If behaviour is “not cricket”, it means it is not fair, honest or moral.
However, when it comes to speaking up in the public interest, double standards often apply, and the term can have a wholly different meaning.
I don’t pretend to remember knowing what a whistleblower was in 1979 but I do remember punk band Squeeze. Tucked away on their album “Cool for Cats” was the song “It’s Not Cricket” which nicely summed up the social stigma against speaking up on moral issues.
“I can't name names cause that's not cricket
I can't name names that would put me in it
But that's another story in the finish”
Despite this, there is a long history of professionals on and off the pitch engaging in public participation by speaking up on moral issues … and putting themselves in it.
In a landmark 2012 divisional playoff, San Francisco 49ers quarterback Colin Kaepernick rushed for an NFL record 181 yards. After learning his opponents were discussing the strategy of attacking him with strategic hits, including late hits, he warned future opponents via a statement on his team’s website they would need a different tactic to stop him.
Consistent with his rejection of intimidation, Kaepernick became a respected civil rights activist. He became known for taking a knee at the start of football games in a protest of violence against Black people. He later filed a grievance against the NFL alleging collusion to keep him out of the league.
In 2018, Nike released an ad featuring Kaepernick with the text:
"Believe in something. Even if it means sacrificing everything."
In 2019 it was announced that Kaepernick reached a confidential settlement with the NFL. However, he did not immediately sign again and the long-term impact for performing in his chosen career is something he is best placed to comment on.
Being a famous personality doing the right thing continues to run the danger of “putting one in it” and resulting in legal action.
This month Anwar El Ghazi won his lawsuit against German Bundesliga club Mainz 05 for terminating his contract in November 2023 for "statements and posts on social media". This appears to have concerned his posts in support of Palestine.
He had responded to the termination of his contract on X, writing:
“Stand for what is right, even if it means standing alone.”
The Mainz Labor Court ruled that the Dutch player's statements fell within the scope of freedom of expression and his dismissal was "invalid”. The court ordered that he be reinstated at his former salary.[1]
However not all who speak up are as lucky and able to continue the game they have spent their life honing their skills to perform. The risk of speaking up is being “cancelled” and informally blacklisted.
In November 2021, British cricketer Azeem Rafiq told UK MPs that speaking up about racism, bullying and inhuman treatment cost him his cricket career.[2]
“Towards the end of his extraordinary and powerful testimony, Rafiq was asked whether he believed he lost his career as a result of racism. “Yes I do,” was his pained reply, before daring to dream of better days ahead. “It’s horrible. But I am a massive believer in that everything happens for a reason. And hopefully in five years’ time we are going to see a big change.”
Standing up for what is right however can lead to more than cancellation. It can also lead to being sued.
Romain Molina is an investigative journalist whose work has led to many sports leaders around the world being banned, investigated or imprisoned, primarily for acts of pedophilia and match-fixing.[3]
In March 2023 CNN reported that Molina was the subject of a defamation lawsuit designed to gag him for making allegations of sexual abuse and harassment against the former Haitian Football Federation (FHF) president.[4] This was in circumstances where Molina was supported by The Guardian and one feature of a SLAPP is that an individual is sued when a corporate could have been sued.
Molina told CNN Sport of the case and of his reporting:-
“I know it can be a little bit stressful for some people. But [it’s] worth fighting for the truth, or what is the closest thing to the truth,”
Meanwhile, CNN reported that other journalists and witnesses dealing with various related cases had faced not only threats of legal action, but Human Rights Watch had documented witness intimidation including armed men seeking them out at work, a home “shot up and ransacked,” and multiple threats to witnesses, victims of abuse, and family members.[5]
In June 2023, the Judicial Court of Paris ruled in favor of the former president of the FHF.
In July 2023, The Guardian reported that the former President was due in court in Port-au-Prince over sexual abuse allegations.[6] In October 2023 the Court of Appeal of Port-au-Prince demanded a second time that the former FHF President attend the magistrates court in person or face an arrest warrant.[7] What happened next cannot easily be ascertained from the web.
More recently the English courts have been grappling with the case of a famous individual who has serially sued third parties for libel, and in one successful case is now facing late challenge to a judgment owing to fraud, established in a separate third-party action (which he has indicated he will appeal).
The consequences of speaking up can therefore go beyond dismissal, to blacklisting, to attempted cancellation and even to protracted lawsuits. Which you might lose owing to the vagaries of litigation or fraud, even if you are in the right, or mostly right.
One reason for this is SLAPPs.
What are SLAPPs?
SLAPPs are legal actions that are abusive and an improper use of the legal system. Typically, they are brought by corporations or individuals with the intention of harassing, intimidating and financially or psychologically exhausting opponents via improper use of the legal system. SLAPPs are typically framed as defamation, harassment or privacy cases and are brought by wealthy individuals or corporations to evade scrutiny in the public interest. They can occur across a broad spectrum of issues including data protection, privacy and environmental law. Actions are typically brought against individuals (even when there are corporates who could be sued), such as investigative journalists, editors, activists, publishers, academics, bloggers, lawyers, and whistleblowers. Even cartoonists. They are designed to silence criticism.
SLAPPs’ characteristics include, but are not limited to, large numbers of aggressive pre-action letters, targeting a financially weak defendant, abusive interlocutory or discovery processes designed to increase complexity and costs, and bringing claims simultaneously in multiple jurisdictions. At their heart SLAPPs fundamentally undermine freedom of speech and the rule of law.
SLAPPs sometimes, but not always, involve claims with little or no merit or minimal damages. They may seek excessive damages or injunctive relief, designed to force a settlement on oppressive terms. They may be malicious and they may have ulterior purposes. They may involve fraudulent claims and perjurous evidence.
SLAPP typologies are also used in abusive defence strategies, particularly against whistleblowers. Normally with intentions to secure retractions of allegations, install broad gagging provisions and enforce financial concessions under settlements.
SLAPPs are on the increase
SLAPPs are not merely abusive; they are an attack on freedom of speech. They are frequently an attempt to hinder the prevention or investigation of crime or other legal misconduct. An August 2023 report by The Daphne Caruana Galizia Foundation on behalf of CASE (the Coalition Against SLAPPs in Europe), analyzing over 500 cases in 29 European countries, identified them as increasingly threatening democracy in Europe.[8]
According to a 1 March 2024 UK government policy paper[9], SLAPPs are on the increase in the UK and primarily relate to those speaking up about economic crime and corruption.
Citing provisional data from CASE[10], the UK government estimated there were 14 cases in England and Wales in 2021, up from 2 in both 2020 and 2019 and 1 case in 2018. Data from the Foreign Policy Centre and ARTICLE 19 indicated that at least 70% of the cases reviewed were connected to economic crime and corruption.[11]
CASE’s database of SLAPPs has increased from 570 cases in 22o to over 820 cases in 2023.
Tackling SLAPPS
(i) Ordinary Court Process and Ethics
On one level SLAPPs represent abuse of a local law system and an undermining of the rule of law. As such, the first line of attack for a SLAPP is ordinary applicable rules of court procedure, abuse of process rules and professional conduct rules applicable to lawyers.
Professional guidance for solicitors has been tightened up and there have been a growing number of cases where abuse of process has been used successfully to strike out potential SLAPPs.
In March 2024 we saw the first judgment in the UK expressly referring to SLAPPs, which struck out defamation proceedings as “vexatious”. In Kelly v O’Doherty [2024] NIMaster 1, Master Bell of the High Court of Northern Ireland found that the proceedings bore the hallmarks of a SLAPP. In the absence of any statutory framework for SLAPPs he struck out the action on the basis of an existing line of case authority for what is termed Jameel abuse of process. He remarked that:
“the abuse of process in this case is so blatant that it would be utterly unjust if the court were to allow the proceedings to continue. The Court therefore has no hesitation in striking them out”.
The claimant was also ordered to pay costs on the indemnity basis. Master Bell expressed his view that:
“where a court is satisfied on the balance of probabilities that a defamation action amounts to a SLAPP, then the award of costs to the defendant on the indemnity basis is an inevitable consequence as a demonstration of the court’s repudiation of the way in which a plaintiff has abused the processes of the court”.
Abuse of process can also be raised after the end of an action in a suitable case, whilst fraud can also unravel judgments if that can be shown.
(ii) Bespoke Legislation
SLAPPS however also typically represent a fundamental attack on universal human rights including freedom of opinion and expression as well as freedom of peaceful assembly and association. Sometimes the action can be brought in multiple jurisdictions or in a jurisdiction with which the victim has no real connection.
Under international law, States assume duties to respect, to protect and to fulfil human rights which in many cases have been transposed into local law (eg the UK’s Human Rights Act 1998 and Hong Kong’s Bill of Rights Ordinance Cap. 383). The normal adversarial process is not necessarily appropriate in a case where human rights are being weighed in the balance or there is a perceived systemic abuse of the system.
As a consequence, enabling laws and directives have now been adopted across the Americas, Europe, Asia and Australia to provide a statutory framework for tackling SLAPPs, whether by domestic claimants or people engaging in “libel tourism”. That is a term that particularly refers to a past practice of pursuing a case in England and Wales in preference to jurisdictions such as the United States which provide more extensive defences for those accused of defamation.
Recent Developments
(i) The UK
On 20 January 2022 Bob Seely MP told the government it needed to “end the cancer” of high-end law firms selling “intimidation services” to oligarchs trying to use the legal system to silence journalists and critics. In other words, an end to libel tourism.
On 26 November 2023 the Economic Crime and Corporate Transparency Bill received Royal Assent. This included the first anti-SLAPP rules in England and allows a victim to seek early dismissal of an action if it has hallmarks of a SLAPP and is designed to stifle public participation to prevent or detect economic crime.
On 23 February 2024 the Conservative government backed an Anti-SLAPP Bill to end a wider range of intimidatory lawsuits that stifle free speech. Aimed at corrupt elites with deep pockets, it sought to extend the anti-SLAPP measures beyond economic crime to certain other attacks on free speech.
“This Government has already proved its commitment to cracking down on those with deep pockets who abuse our courts, so we thank Wayne David for bringing forward this important legislation.
Free speech and the free press are lynchpins of our democracy, and to muzzle people in this way is chilling. We want people to feel confident standing up to the corrupt, knowing the law is firmly on their side.”
Former Lord Chancellor and Justice Secretary, Alex Chalk KC
23 February 2024
The incoming Labour government is expected to unveil 35 new bills in the King’s Speech. We wait to see whether or not it will revive the Anti-SLAPP Bill or the Whistleblowing Bill, which would establish an Independent Office of the Whistleblower and criminalise retaliation against public interest whistleblowers (potentially including SLAPPS).
Meanwhile there have been various calls for the Solicitors Regulation Authority to have the power to impose unlimited fines on law firms that engage in SLAPPs.
(ii) The EU
Meanwhile on 11 April 2024 the EU finally adopted a Directive to protect those speaking out on matters of public interest against abusive lawsuits meant to silence them. It is known as Daphne’s Law in memory of Daphne Caruana Galizia, a journalist who, at the time of her brutal murder, was facing 48 active defamation suits.
The Directive requires member states to provide safeguards against manifestly unfounded claims or abusive court proceedings against persons who engage in public participation. It also recognizes the potential for civil claims with cross-border implications resulting from their public participation. Residents of the EU are therefore also to be protected within the EU from the enforcement of orders made in third party countries that are considered manifestly unfounded or abusive in the member state in question.
Member states have 2 years in which to transpose the law into national legislation.
(iii) Asia
Indonesia, the Philippines and Thailand have all adopted variants of anti-SLAPP laws and there is a growing awareness in South East Asia of the need for more expansive legislation.
Though it has adopted the universal declaration of human rights as part of the Bill of Rights Ordinance Cap. 383, including the right to freedom of opinion and expression, Hong Kong has not yet made any moves either to adopt whistleblowing legislation or anti-SLAPP measures. The Court of Appeal has received submissions concerning SLAPP lawsuits in an appeal of the dismissal of an action for harassment for lack of locus. This is believed to be the first occasion on which the concept of an abuse of process by reason of a SLAPP has been raised before the Hong Kong courts and judgment in that case is awaited.
[1] https://www.aa.com.tr/en/middle-east/anwar-el-ghazi-wins-lawsuit-against-mainz-05-for-terminating-contract-after-he-supported-palestine/3273985
[2] https://www.theguardian.com/sport/2021/nov/16/azeem-rafiq-cricket-racism-yorkshire-dcms-select-committee
[4] https://edition.cnn.com/2023/03/23/football/yves-jean-bart-defamation-journalist-intl-spt/index.html
[5] https://www.hrw.org/news/2023/03/21/haiti/france-journalist-sued-exposing-sex-abuse-haiti-soccer
[6] https://www.theguardian.com/football/2023/jul/18/former-haiti-fa-president-jean-bart-due-in-court-over-sexual-abuse-allegations
[7] https://www.haitilibre.com/en/news-40814-haiti-justice-the-court-of-appeal-orders-the-appearance-of-yves-jean-bart-alias-dadou.html
[8] https://www.the-case.eu/latest/how-slapps-increasingly-threaten-democracy-in-europe-new-case-report/
[9] https://www.gov.uk/government/publications/economic-crime-and-corporate-transparency-act-2023-factsheets/economic-crime-and-corporate-transparency-act-strategic-lawsuits-against-public-participation-slapps#fn:1
[10] https://www.the-case.eu/latest/how-slapps-increasingly-threaten-democracy-in-europe-new-case-report/
Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.
For specific advice about your situation, please contact:
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