Published methodology
The new Am I Facing a SLAPP tool has been developed by Index on Censorship with funding from the Justice For Journalists Foundation and the Joseph Rowntree Charitable Trust.
It is based on an earlier version of the tool launched in 2020, which was focused on identifying SLAPPs targeting journalists and other media workers. This latest tool builds on that foundation by asking more detailed questions to help identify a wide variety of SLAPPs targeting various stakeholders, making it a valuable resource for anyone who speaks out in the public interest.
How the tool works
The tool is a questionnaire designed to identify different aspects of the legal threat or action and score them according to the likelihood they represent a SLAPP.
The lower the score, the less likely the case is a SLAPP; the higher the score, the greater the likelihood.
The tool covers both legal threats, where legal action has not yet been initiated, and legal actions, where proceedings have already commenced.
The development of the tool has been informed by our ongoing research on SLAPPs. Specifically:
- SLAPP actions and threats that have been identified as SLAPPs by bodies such as the UK Anti-SLAPP Coalition and the Coalition Against SLAPPs in Europe (CASE), as well as individual experts;
- Legislative developments such as domestic court judgments, the EU Anti-SLAPP Directive and the Council of Europe Recommendation on the Countering of SLAPPs;
- Regulatory action by bodies such as the Solicitors Regulation Authority;
- Analysis and reporting carried out by civil society organisations, such as media freedom organisations, legal scholars, academics and pro-transparency campaigners;
- Other relevant analysis of SLAPPs.
As well as these resources, the development of the tool has been carried out in collaboration with a number of organisations and individuals across Europe. The first stage of the tool’s development was to understand potential user’s feedback on the existing tool to ensure the updated version responds to the gaps in the tool and underlying methodology. So based on the existing tool, Index on Censorship developed a survey that was shared with members of the:
- UK Anti-SLAPP Coalition
- Coalition Against SLAPPs in Europe
- Scottish Anti-SLAPP Working Group
- Ireland Anti-SLAPP Network
This survey was designed to understand the strengths and weaknesses of the pre-existing tool. From analysis of these results, as well as broader desk research, a new tool structure was developed with new questions.
Index on Censorship identified Tripetto as the platform of the new tool due to its ease of use and integration, as well as the flexibility of the tool to facilitate branching logic and detailed scoring based on the specific questions answered.
After analysing the survey results and desk research, we established a set of new questions and developed different routes through the tool. The tool deploys branching questions which means that the questions asked of the user depend on answers they had selected in previous questions. This allows us to tailor the tool more precisely based on the circumstances of the user.
These new questions were integrated into a Beta test in Tripetto, which was again shared with the group of experts and external partners in order to further refine the new tool. The survey focused on the ease of use of the platform and the route through the tool to ensure the progression of the questions was clear and no gaps were identified.
Establishing the methodology
Once the structure of the tool was finalised, we developed the methodology of the tool, based on a Likert Scale. Each answer was assigned a numerical score - the higher the value the more likely that answer represented an action or behaviour that could identify a SLAPP.
We selected a ten-point scoring range to allow us to develop a detailed and clear scoring regime.
1 = this answer denotes that the case is unlikely to be a SLAPP.
10 = this answer denotes that the case is very likely to be a SLAPP.
At the end of the tool, the values for each answered question would add up to a final score to identify the likelihood that the legal action or threat could be described as a SLAPP.
To ensure the scores for each potential answer in the tool were robust and based on expertise related to SLAPPs, Index established a group of experts made up of lawyers, scholars, campaigners and experts from across Europe and the US. They include:
- Dr Francesca Farrington, Co-convener Anti-SLAPP Research Hub, Aberdeen University
- Charlie Holt, Europe Lead, Global Climate Legal Defense (CliDef)
- Vanja Juric, Lawyer
- Flutura Kusari, Legal Advisor, European Centre for Press and Media Freedom
- Professor Tarlach McGonagle, Programme Director of the master Information Law and associate professor at Institute for Information Law, University of Amsterdam
- Rosalind McInnes, Legal Director, BBC Scotland
- Jessica Ní Mhianin, Head of Policy and Campaigns, Index on Censorship
- Alexander Papachristou, Executive Director, Cyrus R. Vance Center for International Justice
- Gill Phillips, Editorial Legal Consultant
- Professor Dirk Voorhoof, Professor emeritus, Freedom of Expression, Human Rights Centre, Ghent University
- Nik Williams, Policy and Campaigns Officer, Index on Censorship
The Group of Experts coded each answer in the tool against the 1 to 10 scale (identified above) to arrive at a collective final score for each answer, which was then divided by the number of experts to arrive at the mean average score. This was inputted into the Tripetto tool to assign each answer with a final weighting.
Once the methodology was integrated into the tool, it was resent to the group of experts who tested it, as well as a number of SLAPP targets from across Europe, who tested the tool against the details of the SLAPP they faced.
A few points about the scoring
- The scores for each answer was not a ranking scheme. As a result, multiple answers to the same question may have the same score if they have the same likelihood of characterising a SLAPP threat/action.
- Not all answers in the tool are scored, leaving some being scored as 0. This is because some of the questions are necessary to navigate through the tool and ensure the user is given the appropriate question to answer but do not impact the likelihood that the case is or is not indicative of a SLAPP. For example, understanding the cause of action used in a SLAPP is important but as no cause of action itself means that the threat is more or less likely to be a SLAPP, were these answers to be scored it would incorrectly skew the final score.
- Multiple answers act as multipliers. Due to the complexity of the issue and the need to be as specific as possible, a number of questions in the tool allow for users to select multiple answers. While each answer is scored individually, to avoid multiple answers skewing the final score too significantly, when a user selects multiple answers instead of adding the scores together, the highest score of the answers selected is used, which is then added to the number of answers selected. For example:
- Answering the question “Who else is named in the legal threat?”, if the user selects a colleague (scored 7) and a source (scored 8), the final score would be calculated as 8 (highest of the two scores) + 2 (two answers selected), leaving the score for that answer to be 10
For the question about the causes of action used in the legal threat or action, while the scores for individual answers are 0, if the user selects multiple causes i.e. defamation and privacy, the multiplier is still in effect. For this example, the overall score would be 2 to reflect 2 causes of action being selected.
- Answering the question “Who else is named in the legal threat?”, if the user selects a colleague (scored 7) and a source (scored 8), the final score would be calculated as 8 (highest of the two scores) + 2 (two answers selected), leaving the score for that answer to be 10
Limitations for the tool
The tool is designed to capture as many different types of SLAPPs as possible but we acknowledge that due to differences in legal jurisdictions and cultures, evolutions in SLAPP tactics and specific dynamics within each legal threat or action there may be some cases that may be missed.
The nature of the tool requires discrete answers to specific questions. As a result, there may be some types of behaviour that are missed. For example, there are many specific and unique ways that threats can be communicated in a pre-action legal letter. As we need specific answers to be numerically coded we cannot capture all of these ways. That is not to say that these behaviours are not indicative of a SLAPP but we have had to prioritise establishing a functional tool that can identify key symptoms of a SLAPP.