Avoiding a “SLAPP down”
23 Mar 2023
DRD’s Michael Rose examines the growing debate around Strategic Lawsuits Against Public Participation (SLAPPs) and how clients can ensure the pursuit of legal remedies doesn’t land their reputation in hot water.
In July 2022, the Ministry of Justice (MoJ) announced proposals to grant courts new powers to dismiss SLAPP cases. Reporting the news, The Guardian characterised them as ‘lawsuits employed by wealthy clients to stifle free speech’. Elsewhere, The Times have described them as attempts to ‘silence journalists’ that are ‘damaging the institutions of a free society’. The message is clear, deploy a SLAPP and face not just the legal, but also the reputational consequences.
But what is a SLAPP? Its full name, a Strategic Lawsuit Against Public Participation, gives little insight into what they are. To critics, a SLAPP is an aggressive legal strategy aimed at silencing critics and have proved controversial. They are firmly in the Government’s crosshairs, who have described them as ‘an abuse of law and procedure as their principal objective is stifling public debate’. At the end of last year, the Solicitors Regulation Authority (SRA) issued a warning against their use, saying they expected lawyers to ‘advise clients against pursuing a course which amounts to abusive conduct’ and to ‘decline to act in this way’. Yet defining a SLAPP varies substantially depending on who you ask.
We are therefore in the midst of a vocal, emotionally charged SLAPPS debate, despite the lack of a universal definition. By portraying SLAPPs as uniformly abusive, we risk undermining people’s legitimate rights to protect their reputation from unfair or misleading attack. However, it is clear that the controversy surrounding ‘SLAPPs’ presents a reputational risk for both lawyers and clients considering their use. The shots fired by both the MoJ and SRA are a warning. In the current environment, those considering legal action against critics must consider the potential reputational implications.
Even in situations where a client’s case may have merit, determining if a perceived SLAPP will prove reputationally damaging is a crucial consideration. The media furore around so called ‘super injunctions’ in the early 2010s forewarned us how legal success can still harm someone’s public profile. Clients will need advice not just on how to deal with the issue in question, but whether legal action characterised as a SLAPP could do further damage, even if successful.
SLAPPs are proving an increasing challenge for those seeking to defend their reputations. Their blurred definition allows critics to brand potentially legitimate legal remedies as ‘abusive’. Without a clear strategy to weigh up the communications challenges to sit alongside the legal strategy, clients tagged with the SLAPPs moniker could end up with a Pyrrhic victory. Having an integrated comms and legal strategy offers the best route to avoiding a “SLAPP down”.