A SLAPP suit, or strategic lawsuit against public participation, was coined by US professors, Pring and Canan in the 1980s. It is a lawsuit intended to censor, intimidate and silence critics by trying to burden them with legal costs, until they must abandon their positions, or else face ruin. The goal of the SLAPP suit is not to win – in fact they rarely do, since they are baseless and frivolous – the aim is instead to make the defendant step down due to exhaustion, increasing legal costs and/or fear. The issue here is that people with large amounts of money can buy people’s right to freedom of speech, by burying them in charges and costs. The idea of buying free speech is understandably concerning to a lot of people, both in the UK and abroad.
The Wealth Barrier
There is always the option to buy someone’s silence, through bribery or blackmail, but in those situations, the person who must keep quiet chooses to do so, in return for compensation. It is their choice, and especially in cases of blackmail, it is usually they who initiate the request for payment. However, in a SLAPP suit, the defendant is forced to pay increasing legal fees until they cannot afford to pursue their attempts. A case should not be abandoned for monetary reasons, and this is why we have pro-bono law. But a terrifying idea is that you can now buy people’s rights. The wealth gap is an undeniable part of a modern-day society. 50% of worldwide wealth is owned by 1% of the population, and 85% is owned by a mere 10% of the population. Whether or not you agree with such unequal distribution of wealth, it is a fact of life. However, that does not mean that we can allow that same inequality to corrupt the legal system. The reduction in funding of both the police and CPS (Crown Prosecution Service), has led to a rise in private prosecutors, as now only 8% of crimes are even brought to court. Now, instead of the overworked and underpaid prosecution from the state, you can pay to have a private team of prosecutors, who will prosecute for you. Of course, the issue is that this is only possible if you are rich enough to afford it. Why should a rich person be able to pursue their matters, unlike a poorer person? The same is also true for a defendant. As a rich defendant, it is nearly always worth pleading not guilty. You will get a longer sentence if found guilty, however, only 6.6% of crimes result in a guilty verdict, so the odds are in your favour. This is especially true if you can afford a prolonged cause in court, and can call expert witnesses who can contest every piece of evidence.
In America, some states have passed Anti-SLAPP laws, often called SLAPP-back laws. However, the UK has no such laws to define a suit as a SLAPP suit, so you would have to infer the motive of the plaintiff. It is hard to limit the ability to bring a SLAPP suit, without also inhibiting the right to petition. This is why in America, although the limited SLAPP legislation was met with favourable opinion by lawyers, it is by no means comprehensive in its ability to ‘SLAPP back’. In both America and the UK, there is a push for stronger anti-SLAPP legislation. A prominent example is Sir Keir Starmer, former director of public prosecutions and now leader of the Labour Party. He fought to make guidelines for prosecutors which protected journalists, if they had broken select laws which were against the public. However, the problem still stands. Daphne Caruana Galizia, a journalist from Malta, had 42 suits against her for libel at the time of her murder in 2017. Most of these suits were from the UK courts due to the UK’s weak libel laws. The issue is that most of the time, when a journalist writes an article, they do so with the facts that they have gathered and believe in, but there is no way to prove these in a court of law. This opens them up to a libel suit. Despite the challenge, money should not be able to buy the silence of critics and so further action should be taken. However, we cannot also restrict the rights of a honest petitioner.
- David Cairns, Libel law: past, present and future, December 2019, All About Law
- Nick Cohen, In Britain now, the richer you are, the better your chance of justice, April 2018, The Guardian
- Lizzie Dearden, Justice system in ‘crisis’ as only 8% of crimes prosecuted in England and Wales, January 2019, The Independent