The High Court of Northern Ireland has recently handed down a judgment which appears to be the first instance of a court in the UK striking out a claim because it amounts to a strategic lawsuit against public participation, otherwise known as a SLAPP.1
In this article we consider that case in some more detail, look at legislative SLAPP proposals and regulatory involvement in the UK, and consider the potential impact on the legal landscape in New Zealand.
What is a SLAPP?
A SLAPP typically involves the subject of an allegation or investigation of wrongdoing seeking to use the threat of expensive, improper, litigation to try and prevent publication. The tactic may further be used where the threatened litigation carries the risk of the loser paying very high costs to the winner, especially if the claimant has greater resources than the defendant.
Common features of a SLAPP also include the underlying subject matter being one of public interest, aggressive pursuit of litigation, several claims being brought against the same defendant in different jurisdictions, or a claim being pursued against an individual journalist despite the presence of other corporate defendants being more appropriate.
The usual factual scenario includes a large corporate or high-net worth individual seeking to suppress a publication led by whistle-blowers, campaigning groups, or investigative journalists, but a SLAPP could also arise in other scenarios such as a dispute between a landlord and tenant, medical professional and patient, or even employer and employee.
Most claims identified as SLAPPs are for defamation, although privacy, copyright, breach of confidence or data protection claims may also be relevant.
Northern Ireland: Kelly v O'Doherty
In Kelly, journalist Malachi O'Doherty recently claimed that Gerry Kelly, an IRA prisoner turned politician, had shot a prison officer during an escape from prison in 1983. Mr Kelly brought a claim for defamation which Mr O'Doherty sought to have struck out on the basis that the proceedings were an abuse of process and amounted to a SLAPP.
Master Bell held 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". His reasoning included:
- There had been wide reporting over the years that Mr Kelly had shot the prison officer and no defamation proceedings had previously been brought by him.
- The current proceedings were targeted against two freelance journalists which suggested that "rather than being a genuine attempt to defend a reputation which had been damaged by an untruth, the proceedings are what has been referred to as a SLAPP, namely an attempt to silence two bothersome journalists with the threat of legal costs…to intimidate them, to deprive them of time and resources, and ultimately to silence them".
- An untrue allegation that Mr Kelly had shot a prison officer in the head would not have damaged Mr Kelly's reputation because: (i) he was a former member of a terrorist organisation; (ii) he had previously been convicted of offences regarding terrorist explosions which left 200 people injured; (iii) he acknowledged in his own autobiography, 'The Escape', that he played a significant role in the unlawful escape from prison; and (iv) he had shown no regret for what he had done.
Northern Ireland does not have any specific SLAPP legislation and therefore the proceedings were struck out pursuant to the court's inherent jurisdiction on the basis that they were "scandalous, frivolous and vexatious", an "abuse of process", and had "no realistic prospect of success".
Legislation and regulatory involvement
Several US states have introduced anti-SLAPP laws which provide a procedural mechanism by which a defendant can apply to have a claim against them dismissed at an early stage to avoid the costs of defending the legal proceedings all the way to trial.
The UK government has recently been under pressure to legislate on the issue amid concerns that SLAPPs were being used by wealthy individuals, especially Russian oligarchs, to stifle free speech and deter investigations into their affairs. Royal assent has been given for the Economic Crime and Corporate Transparency Act 2023 to amend the UK's Civil Procedure Rules to create a new basis to strike out a claim which relates to the publication of information concerning economic crime which the court considers (a) is a SLAPP; and (b) is less than likely to succeed at trial. The definition of a SLAPP includes behaviour of the claimant which:
has, or is intended to have, the effect of restraining the defendant's exercise of the right to freedom of speech; and
is intended to cause the defendant harassment, alarm or distress, expense or any other harm or inconvenience, beyond that ordinarily encountered in the course of properly conducted litigation.
Although it is not yet in force, reception to the legislation has been mixed. Campaigners say that its limited application to economic crime means that it doesn't go far enough, and a bill has already been proposed which would broaden its scope to protect all matters of public interest where a SLAPP might arise. Conversely, critics say that legislation is unnecessary given the limited number of cases it might address, and that it imposes a heavy burden on a claimant to prove at an early stage of the legal proceedings that they are likely to succeed at trial, thus increasing the costs of litigation and creating access to justice issues.
The proposed legislation follows regulatory involvement from the UK's Solicitor Regulation Authority which has previously issued a warning notice to the profession that it was investigating various law firms for pursuing abusive SLAPP litigation on behalf of clients. In doing so, various 'red flags' were identified, including common characteristics of a SLAPP and those relating to the conduct of litigation.
New Zealand landscape
New Zealand has no legislation specific to SLAPPs meaning a defendant seeking to dispose of such proceedings at an early stage would need to contend that the claim discloses no reasonably arguable cause of action, is likely to cause prejudice or delay, is frivolous or vexatious, or is otherwise an abuse of process.2 This remains a high bar with the Supreme Court in New Zealand having recently approached strike out principles as follows:3
we assume the pleaded material facts are true save for those that are entirely speculative and without foundation…[strike out] is to be exercised sparingly and only in clear cases. We must be certain the claim is so untenable it cannot succeed and slow to strike out claims in any developing area of law.
A defendant faced with a SLAPP claim is likely to experience difficulty in meeting the necessary threshold for strike out at an early stage of proceedings, particularly if, unlike in the Kelly case above, the claimant is able to demonstrate that there is some degree of merit in the underlying cause of action.
Conclusion
SLAPPs raise interesting tensions between freedom of expression and reputation management.
Ultimately, it is crucial that the legal system is protected from abuse by those improperly seeking to stifle public discourse and the experience in the UK indicates that the legal profession ought to play an important role in that. However, care must be taken to avoid an outcome where a defendant could raise allegations that a legal complaint amounts to a SLAPP purely to stifle an individual or organisation from properly protecting or repairing their reputation after an untrue allegation has been published about them. Close attention ought to be paid to whether there is an increase in litigation in New Zealand which bears the hallmarks of SLAPPs to warrant a legislative or regulatory response, or greater intervention from the court.