I agree that the strategic lawsuits against public participation (Slapp) bill is disappointing, but for very different reasons to Gill Phillips (The rich and powerful are silencing those who try to hold them to account. Will we stand up to them?, 21 February). It is deeply flawed and, I fear, is being rushed through in response to a mere handful of alleged cases. These few bad apples do not justify setting fire to the orchard.
This law won’t just affect the “rich and powerful”; it could impact anyone. Any case, no matter how well-founded, could be designated as a Slapp if the claimant’s conduct is “intended” to cause the defendant “inconvenience beyond that ordinarily encountered” in the course of “properly conducted” litigation. There is no guidance on what would cross that threshold.
Then, if the claim is held to be a Slapp, it may be struck out unless the claimant shows that they are “more likely than not” to succeed at trial. This is very hard to do at an early stage, especially before the defendant has given disclosure or witness evidence. It effectively shifts the burden of proof on to the claimant, when even the government acknowledges that reversing this burden would weaken media standards.
Even if the claimant does win at trial, the court cannot award them their legal costs unless they also show that the defendant’s misconduct justifies it. This is a huge and unjustified risk for claimants to face, when most defamation claimants are already left out of pocket even after being awarded their costs.
When you are given a shiny new hammer, everything starts to look like a nail. There is no real disincentive to bringing an anti-Slapp application, and where the definition is so wide, and the potential upside so great, I fear defendants will bring them all the time. This will increase the costs of litigation, which is the very thing the bill supposedly seeks to avoid.
Hugo Mason
Media lawyer, Simkins LLP, London
