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UK government outlines proposals to strengthen freedom of speech

The UK government is seeking views on how it can strengthen legislation to clamp down on litigation intended to stifle criticism of large corporates and high net worth individuals.

The government has issued a call for evidence on possible reforms to the law that could help cut down on what are known in the US as 'strategic lawsuits against public participation' (SLAPPs) – cases that involve wealthy individuals or large businesses threatening defamation and privacy claims to intimidate the press, authors and campaigners from publishing critical reports and books.

Media litigation expert David Barker of Pinsent Masons said the proposals could bring the British system in line with other jurisdictions, notably the US where freedom of speech protection was stronger.

“Anti-SLAPP laws have been in existence in the US for some time, largely due to the country’s constitutional system protecting freedom of speech as an almost absolute right by the US First Amendment. A number of states have anti-SLAPP statutes and others have recognised anti-SLAPP-like protection as a matter of case law,” Barker said.

“The anti-SLAPP laws across the various states in the US typically involve the publisher being able to apply to the court at an early stage for a lawsuit to be dismissed if it relates to content that is in the public interest,” Barker said.

The government has suggested legislative, procedural, regulatory and costs reforms for the British courts. Options under consideration include 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.

The government has also suggested adopting new approaches to defamation defences, such as introducing a requirement for SLAPP claimants to show ‘actual malice’ on the part of publisher defendants. Court procedures could also be amended, for example through introducing strike-out procedures for claims which are an abuse of process.

The call for evidence notes that the Solicitors Regulation Authority recently published new guidance on disputes conduct, and asks whether those subject to SLAPPs have raised concerns or complaints with regulators.

There are also proposals to reform the costs regime for defamation and privacy cases, including a proposal to introduce a costs-capping system in SLAPP cases.

The government said it wanted evidence on how widespread the use of SLAPPs was, adding that many cases would be settled before ever reaching court due to the pressure exerted by claimants.

National Union of Journalists general secretary Michelle Stanistreet said the union would welcome moves that would mean journalists and media outlets no longer have to face “prohibitive costs and deliberate intimidation” by wealthy litigants.

Last week the House of Commons Foreign Affairs Committee held a one-day evidence session into the use of SLAPPs, hearing from witnesses including Financial Times journalist Tom Burgis. Burgis was facing a lawsuit from Kazakh mining company Eurasian Natural Resources Corporation (ENRC) over articles and a book about ‘dirty money’ in western financial systems. ENRC dropped the case after an initial hearing went against it. ENRC also lost a parallel libel claim against Burgis’s publisher, Harper Collins.

Burgis told the committee about a series of claims brought against him by ENRC and said many journalists and publishers would back away from publishing stories in the public interest due to the pressure exerted by companies and wealthy individuals.

Author Catherine Belton added that since the imposition of sanctions on many Russian oligarchs, the narrative about their activities had changed and the media were less worried about potential lawsuits by them.

“It is clear that a lot of journalists have faced a barrage of threats and intimidation, and our democracy has been so much poorer for it, because we have not been able to learn properly about the backgrounds of these individuals,” Belton told the committee.

The committee also heard that the cost of defending defamation cases in the UK was significantly higher than elsewhere in Europe.

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