"WHEN I was an MP, I became aware from journalists that there were a number of stories that could be perfectly justified, all the evidence was there, but they would never reach the public domain because of threats from very rich individuals.”
That from Roger Mullin, the former SNP MP, sums up the problems with “SLAPPs” – an obscure point of law that nonetheless has far-reaching implications for every single person living in Scotland.
The former MP has put forward a petition – due to be considered by MSPs this week – pushing for Scotland to tighten the law to prevent the ultra-rich abusing the court system to suppress free speech.
What are SLAPPs?
SLAPP stands for “Strategic Lawsuits Against Public Participation”. But the complicated acronym hides a simple tactic. A rich oligarch or shadowy corporation, wanting to suppress a story, will threaten costly legal action unless the journalist or media outlet in question agrees not to publish what it knows.
While such legal action may be all but guaranteed to fail, achieving a victory would be a long, expensive process that most media simply cannot afford.
As SNP MP Stewart McDonald explains: “SLAPPs not only prevent the publication of information that would be in the public interest, but they are also exploited by mostly wealthy individuals and companies to intimidate or price out defendants into silence.”
And, Mullin adds, another “problem is we don’t know the extent of the problem”. Most cases never reach the courts, the mere threat of expensive legal action being enough to have a “chilling effect” on freedom of expression.
Why does Scotland need to take action?
A LACK of action from Holyrood could have global implications. Mullin recounts the case of Oliver Bullough, a Welsh journalist and author based in London, who in one example of a SLAPP was sued for libel by the vice-president of Angola.
After trying to raise legal action in the UK, Angolan politician Bornito de Sousa Baltazar Diogo instead took his case to the Portuguese courts – a country to which Bullough had never even been.
“Unless Scotland tightens up its laws it will be exposed to [such] libel tourism,” Mullin (below) cautions.
Anti-SLAPP legislation is being developed in Westminster and in Brussels, with plans to stamp down on the practice across both Europe and the rest of the UK.
Through inaction, Scotland risks becoming a “haven” for abuses of the justice system, academics at the University of Aberdeen’s Anti-SLAPP Research Hub warned in an intervention in support of Mullin’s Holyrood petition.
“In addition, SLAPPs have the potential to impact the efficient functioning of the judicial system by overburdening the court system with vexatious or frivolous litigation,” they wrote.
Are there any examples of how they’ve been used in the past?
ONE of the UK’s most high-profile SLAPPs in recent years was the case of the “bad boy of Brexit” Arron Banks.
Banks, the multi-millionaire co-founder of the Leave.EU campaign, filed four defamation claims against Guardian journalist Carole Cadwalladr after she suggested he had been untruthful about his connections to Russia.
Two of those claims were dismissed early on as “far-fetched”, but Cadwalladr faced a lengthy legal battle over the others. In June 2022, Banks lost; the Coalition For Women In Journalism called it “a major win for press freedom”.
Furthermore, Edinburgh-based think tank Ekklesia, in their submission in support of Mullin’s petition, also highlighted several examples of times where journalists had faced SLAPPs.
One such case was that of journalist Catherine Belton, who authored the book Putin’s People: How the KGB Took Back Russia And Then Took On The West. Belton found herself the target of SLAPPs from Russian oligarch Roman Abramovich as well as the Russian state energy company Rosneft for extracts in the book.
The case saw the European Centre for Press and Media Freedom, the National Union of Journalists, Index on Censorship and a host of other organisations write to the UK Government demanding a crack-down on SLAPPs.
But, as Mullin said, the true extent of the number of SLAPP cases facing journalists across Scotland, Europe, and the wider world will never be known.
What action can be taken?
AS it stands, Mullin says, the rich can “abuse the justice system with impunity”, facing no consequences for repeatedly raising cases with the sole aim of suppressing freedom of expression.
By way of a fix, he says: “We need to have in law a system where people cannot raise actions that are without merit and without substance.
“It should be very easy at the outset for the justice system to dismiss [SLAPPs].
“If you were threatened as a journalist, you should have the means to go somewhere in the judiciary and say ‘I have received this threat, you intervene to stop this making any progress’.
“If people continue to try and pursue this abuse, we want some means where they can be penalised.”
Aberdeen University’s academics also called for these two measures, as well as outlining four others such as placing “the burden of proof on the claimant to prove the claim is not manifestly unfounded” and providing “defensive mechanisms to deter the institution of proceedings outwith Scotland”.
The UK Government is looking at establishing a “statutory definition of SLAPPs to help identify relevant cases and form the basis for their being subject to a separate case and costs management regime”.
Will change happen?
IN the EU and the UK – until now known as a hotbed of “libel tourism” – change looks to be on the way. Stricter anti-SLAPP laws already exist in Australia and North America.
Here in Scotland, however, the Government has said it does “not plan to undertake a review”.
It added in response to Mullin’s petition: “The Scottish Government keeps the law under constant review, however, and is closely monitoring the UK Government’s intention to introduce a new statutory early dismissal process to strike out SLAPPs and the recent EU-level draft Directive concerning SLAPPs.”
There is support from within the SNP, with both Michelle Thomson MSP and Stewart McDonald MP (above) telling The Sunday National they backed a law change. “It is about time Scottish reform was put on the agenda,” McDonald said.
Mullin said that other politicians had also given their support to his petition in private. The support from the University of Aberdeen’s Anti-SLAPP Research Hub for the former MP’s proposal is also significant.
The petition will be considered by Holyrood’s Citizen Participation and Public Petitions Committee at its first meeting on 2023, due to be held on Wednesday, January 18.
