The rise in attention paid to Strategic Litigation Against Public Participation (SLAPP) since 2022 has been dramatic.

But what began as legitimate concern about strategic litigation being used to quell free speech has evolved. The Solicitors Regulation Authority’s (SRA) 2022 Warning Notice has created a rise in investigations over recent years. Now, some lawyers pushing back against media coverage adverse to their clients report that the cry of ‘SLAPP!’ is becoming a stock response to routine pre-action correspondence, leading to direct threats of a complaint against the individual lawyer or the whole firm to the SRA.

This raises uncomfortable questions: are media organisations and advocacy groups now weaponising anti-SLAPP rhetoric to deter legitimate legal challenges?

What are SLAPPs?

SLAPPs have been defined as an “abuse of the legal process”, where the primary objective is to harass, intimidate and financially and psychologically exhaust one’s opponent via improper means.

The UK legal system formally acknowledged the SLAPP problem in 2023 when the Economic Crime and Corporate Transparency Act introduced the first statutory anti-SLAPP provisions. Section 195 recognises SLAPPs as “acts of behaviour which have, or intends to have, the effect of restraining the defendant’s exercise of the right to freedom of speech.” This came in the wake of high-profile efforts to ‘shut down’ critical journalists and commentators who had trained their sights on oligarchs and other wealthy, and consequently powerful individuals.

The counter-narrative

The calls for further protection from SLAPPs have grown, yet despite the building support for stronger anti-SLAPP regulation, some say the balance may have shifted too far in the other direction. The Society of Media Lawyers, set up in 2023, aims to oppose new legislation in this field, believing excessive protection will curb the right to legal protection for those who consider that they have been traduced by the media.

It is worth noting that the SML’s membership consists predominantly of lawyers representing libel claimants.

Some believe that the threat of regulatory sanction by the SRA can create a chilling effect, with solicitors now pulling their punches when defending clients’ interests, for fear of regulatory backlash or reputational harm. This, it is argued, creates a void of legal protection for victims who reasonably deserve expert support.

For solicitors, the growing rhetoric around SLAPPs has changed the atmosphere in which advice is given – significantly for reputation-sensitive cases. What could have been a strongly worded pre-action letter before can now, rightly or wrongly, be challenged as a SLAPP and become a subject of significant scrutiny.

Hence, the risk of legal representation being reframed into professional misconduct is too great and is creating an unsteady legal environment, importantly around protecting corporate or individual reputation against defendants with an axe to grind. The idea of a lengthy SLAPP investigation, which can take up hundreds of hours of management time as well as substantial external legal costs, will cause losses and damage to a solicitor or a firm even if they have followed the guidelines.

A report to the SRA can take years while the investigation is undertaken. This is sufficiently serious to force a change in the legal narrative. Many will opt-out of asserting their client’s rights robustly, especially when they lack institutional power. This restraining effect is becoming increasingly evident in practice. Ironically, without careful reconsideration, SLAPP reforms intended to protect free speech could end up suppressing it by discouraging solicitors from enabling clients to speak out or defend themselves. A defendant may have no qualms about, and face no comparative downside to reporting a solicitor to the SRA.

Finding balance

A proposed SLAPP Bill which raised the issue of SLAPPs at a legislative level through the Private Members’ Bill process, expired upon the dissolution of Parliament and currently has no legislative status. The bill will not make further progress in its current form.

As originally drafted, the Bill required the court to assess the claimant’s intention; however, amendments recently made in 2024 have shifted the subjective test to an objective test. This questions whether it is “reasonable to conclude” that the behaviour has, or is intended to have, the effect of restraining the defendant’s exercise of freedom of speech and cause them harm or inconvenience beyond that “ordinarily encountered in the course of properly conducted litigation”.

This reform positively demonstrates an attempted balance between a victim’s access to justice and the competencies and duties of the legal professional. It must be noted that while it increases legal certainty, it also risks attacking innocent litigation tactics. Particularly when interpreting the intention to cause “harm or inconvenience”, as “harm” includes alarm and distress, potentially capturing robust but legitimate pre-action and cease and desist letters under suspicion of abuse of power. This can be particularly tricky in libel and privacy cases, where timing and tone are crucial to protect clients from reputational harm. Solicitors must now tread carefully as assertive advocacy risks being misconstrued as overreach, but failure to act forcefully could mean failing the client.

Overall, the introduction of the objective test is a positive shift towards a more consistent and clear anti-SLAPP legislation. However, further refinement and more tailored definitions are vital so to avoid the risk of  high-level and overly-broad application that will, again, fail at delivering justice.

The SRA may also be taking steps to prevent an imbalance. The SRA recently decided to close the complaint brought by Bellingcat founder Eliot Higgins against Discreet Law, the firm that represented Russian warlord Yevgeny Prigozhin, without any further action. Furthermore, the SDT in the pending case against Christopher Hutchings of Hamlins LLP has recently blocked the reporting of all relevant names to protect legal privilege.

These developments signal a potential recalibration in the SRA’s approach. The Higgins decision demonstrates the SRA’s willingness to distinguish between genuine SLAPP conduct and legitimate legal representation, even in politically charged cases. The SDT’s protection of legal privilege in the Hutchings case suggests judicial recognition that anti-SLAPP enforcement must not override fundamental legal principles.

Together, these moves indicate growing awareness that disproportionate regulation risks undermining core tenets of legal practice. If this trend continues, it may restore balance between protecting public discourse and preserving the integrity of legal representation. However, there is a lack of transparency around the criteria that trigger an investigation and what results in disciplinary action. Many firms are navigating this grey area with uncertainty, which will inevitably harm their practice. More detailed guidance is essential so to maintain professional confidence and ensure protection from reputational damage is a more even-playing field.

Efforts to curb misuse of the law and one’s power to silence speech that is in the public interest are welcome, but the regulatory response must also preserve solicitors’ main role, which is to act in their clients’ best interest. Critical efforts must be made so legitimate advocacy is not in the risk of being rebranded as misconduct. For the time being the tension around new and forthcoming regulations remains unresolved and it will define how the SLAPP debate shapes future practice.

Additional reporting by Cameron Aitken