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A SLAPP – or a Strategic Lawsuit Against Public Participation – is a lawsuit filed not to be won, or often even contested, but rather to cause the defendant to capitulate to the plaintiff’s demands due to fear, legal costs, or other inability or unwillingness to contest the suit.  Usually, when discussing SLAPPs, we’re talking about suits used to suppress criticism of one sort or another.  They’re most often associated with libel – the most famous UK example being McLibel – but can include a variety of other laws, such as trademark law (particularly with gripes sites).  This doesn’t only affect those directly involved, either, as it creates a chilling effect on legitimate criticism and dissent, which as a believer in free speech I find to be a serious problem.

I should start by recognising that laws, however well intended or conceived, will always leave open the possibility of misuse or abuse – quite aside from anything else, progress is naturally disruptive to prescriptive legislation (we need only to look as far as copyright law’s complete inability to deal appropriately with file sharing to see this in action).  This is further complicated by the fact that we characterise a suit as a SLAPP by the intention of the plaintiff (any lawyer will tell you how hard it is to determine intention) – and, of course, SLAPPs aren’t even about winning.  This means that in combating them, we want to fix laws which become overly restrictive or illiberal (common law surfaces such things quickly), reduce the cost of defending against such suits and penalise those who engage in them – the ultimate aim being to discourage them from being filed at all.

Reducing costs for the defence

One of the problems I identified in my libel post was Conditional Fee Agreements (CFAs, or “no win no fee”).  They were brought in to provide access to justice for all, but as I explained they provide huge incentives for law firms to get you to exploit bad laws and impose a huge cost upon defendants.  It’s hard to see how one could spuriously defend a legal action, it’s not possible to make success fees conditional on the size of the award (there isn’t one!), and access to legal representation is even more important when defending (economic disparity is key to this), so CFA reform in my regime would probably leave it as-is for the defence.

That said, while it is possible to defend against SLAPPs using a CFA (one example here), it seems less usual because of discovery costs, drawn out proceedings and unlikelihood of winning.  Possible remedies for this include capping discovery costs and mandating that plaintiffs provide evidence early in the process (IANAL so I really can’t speak to how to do either effectively); another is to provide something similar to California’s Code Of Civil Procedure 425.16, which provides a special motion defendants may file in the case that the suit infringes upon their First Amendment rights.  Unfortunately we don’t have the US Bill Of Rights (you can keep the Second Amendment though, the whole firearms thing is a disaster) so we’d have to come up with our own wording – on the plus side, this would allow us to broaden it’s scope to explicitly include things like creativity and enterprise.

Penalties for SLAPPers

I’ve already mentioned CFAs, and I’d add remedial awards (loss of earnings and whatnot) to those, but neither is meant to be punitive.  Allowing for such, particularly in conjunction with an early counter-motion statute as described above, would be a serious disincentive to filing such suits.  Given that the essential problem is the economic disparity when (for instance) a corporation sues an individual, I would have this as unlimited and at the judge’s discretion, although obviously in a common law system so heavily enamoured of precedent as ours we’d need to keep a watchful eye on this.

The Streisand Effect

The good news on this front is that the nature of the internet, social media and ubiquitous reporting is undermining the SLAPP as an effective weapon.  The Streisand Effect describes the phenomenon of attempted censorship serving to draw much more attention to the information in question – a great recent example is the British Chiropractic Association’s action against Simon Singh which led to the criticism being widely reported in the press and the web, over 500 chiropractors having formal complaints of false advertising levied against them, and the spurring on of the campaign for libel reform.  We have a long way to go with this – for instance, the Trafigura scandal and accompanying superinjunction might have been broken by widespread coverage on Twitter, but the follow-up on the issue has been extremely disappointing, especially in the mainstream press.  Still, I feel there is cause for optimism, and as I’ve said before the worst culprit – the UK’s libel laws – look like they are in for a change.