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The spike haunts journalism. For every journalist in the country, legal threats are a persistent concern that can kill stories dead. Stories that are never published leave no imprint on society around them; while the journalist and their editors know of their existence, their readers and society at large are oblivious. We may know that stories are spiked but their true nature, what has been expunged from the public record, is unknown.
But the Bureau of Investigative Journalism (TBIJ) attempted to change that, to give shape to the stories that have been forced from public attention. On Thursday 21 November, as part of TBIJ’s Silenced Stories project, MPs, protected by parliamentary privilege, presented stories that had been spiked due to legal threats. They came from outlets from across the country, big and small, covering a wide range of topics that the public have a right to know – everything from housing and government contracting to global corruption networks. These are not limited to the big media houses alone. For every national paper that is silenced, a local, independent or community outlet is similarly threatened. While each outlet is different, silence is what they all have in common.
This was an unprecedented view into an erased public record but it only hints at a larger problem. Abusive legal threats are not directed at journalists alone. Anyone who speaks out may be forced into a similar act of erasure – whether on a blog, local Facebook group or online reviewing platform – required to weigh up their desire to speak out against the cost and stress of fighting off legal letters and preparing for court.
Being a target of a strategic lawsuit against public participation (SLAPP) brings with it a cavalcade of emotional, psychological and financial strain. Malachi O’Doherty was sued by the MLA for North Belfast Gerry Kelly and while he was successful in court, the experience left him scarred, “I didn’t get a penny from him, just a lot of sleepless nights and tinnitus.” Paul Radu of OCCRP, who was sued in London by an Azerbaijani MP put it more bluntly: “Even if you win, you lose.” The toll exacted by defending a SLAPP was documented by the European Court of Human Rights in Strasbourg during the well-known McLibel case, where the fast-food goliath McDonalds sued two activists over the content of a campaigning leaflet. Forced to defend themselves due to the lack of financial resources, Helen Steel and David Morris took on a company, whose financial reserves dwarfed many countries. The impact of this inequality on Morris’ and Steel’s defence was noted in the court’s judgement: “All they could hope to do was keep going: on several occasions during the trial they had to seek adjournments because of physical exhaustion.”
But the impact of SLAPPs reaches well beyond the person in the crosshairs. The ripple effect of censored speech runs far and deep. Readers cannot know what was spiked and those who could act on the information are robbed of the opportunity to make a difference. If the victims and journalists who helped expose the shameful Post Office scandal had been threatened or sued into silence – there were attempts, I might add – we would never have known about one of the largest abuses of justice the UK has ever seen. There would have been no ITV drama, no inquiry and no possibility of remedy for those people so cruelly targeted by this “British institution”. When justice is not forthcoming for those who have been sexually assaulted, warning others through online testimony is one of the few avenues open to survivors. Even as successive governments have committed to support survivors of gender-based and domestic violence, how many have been threatened into silence after their abuser turned to the courts to extend their abuse?
Democracies only function when there is enough information in the public domain to sustain an informed electorate. SLAPPs remove it from the public sphere or even prevent it entering in the first instance. How can democracy function without the information needed for everyone to make an informed decision?
The new Labour government – while giving lip service to the importance of stamping out SLAPPs – has done little to realise this goal. They are pushing for greater transparency in public life through enhanced reporting, updates to the Ministerial Code, and changes to government contract awards. These should all be welcomed but will only bring about a partial shift in transparency and accountability. Transparency is not for the public sector alone – private actors can seek to shroud themselves in opacity by threatening legal actions. The goal is simple: if their actions are shielded from view how can they be held to account? Public watchdogs – be they journalists, academics, whistleblowers, Facebook groups or local campaigners – fulfil a vital function in this regard but are the most vulnerable to abuse. Without legislative action, every time they attempt to bring something into the light, they risk their financial security and ability to continue their work free from the harassment and abuse that comes with SLAPP threats or actions.
The debate yesterday was striking in the consensus that emerged across the house. MPs from six parties across the political spectrum spoke powerfully about the curdling impact of legal threats on the public record and our fundamental rights, including the Green Party’s Siân Berry (pictured). They were united in calling for action but the government’s support for an anti-SLAPP law, evidenced by their backing of Wayne David’s Private Members’ Bill before the election, has seemingly evaporated. Heidi Alexander MP, speaking on behalf of the government, stated that “we do not currently intend to legislate in this parliamentary session but we are continuing our work to consider how best to tackle wider abuses of the system in the longer term.” Without the necessary urgency, we have no idea what to expect from the government. This is why the UK Anti-SLAPP Coalition has launched a petition, allowing the public to stand up for free expression.
Yesterday, many of the gaps in the public record were exposed, but for every story shielded by parliamentary privilege too many remain on the spike. Only when the public can access the information they need to make an informed decision can we ensure democracy is protected.
On 11 September 2024, a spoof legal letter from fictitious law firm, Silver, Langston and Percival Partners was sent to every sitting MP in the House of Commons. The letter, claiming to be acting on behalf of an anonymous claimant, calls on MPs to “publicly retract [their] statements and apologise”, or face court proceedings. While it is a spoof letter, it includes language taken from real legal letters that have been sent to public watchdogs in the UK.
The letter was organised by the UK Anti-SLAPP Coalition, a coalition of civil society organisations seeking to put an end to the legal harassment of those speaking out in the public interest. The aim of the letter is to demonstrate to MPs how public watchdogs are being unduly targeted by legal threats and to demonstrate how aggressive those letters are. Legal threats are seldom seen in public as the target is often intimidated into silence.
Without meaningful protections against SLAPPs, those with power and money can continue to abuse the law to silence those speaking out in the public interest. The UK Anti-SLAPP Coalition has documented SLAPP threats targeting a wide range of people including journalists, sexual violence survivors, local community groups and campaigners, and environmental defenders. With the previous SLAPP Bill dead after the announcement of the General Election and no commitment for an Anti-SLAPP law in the recent King’s Speech, there is currently no legislative timetable for picking up where the last government left off. This is despite the issue enjoying strong cross-party support.
Rachel Blake MP (Labour) said:
“SLAPPs are harmful to our democracy. They enable those who can afford it to pursue legal action to silence critical speech and avoid scrutiny, and I would welcome action to prevent their use.”
Jamie Stone MP (Liberal Democrat) said:
“SLAPPs should not be used to suppress freedom of speech and silence criticism. Cracking down on investigative journalism threatens our democracy. We should not risk curtailing the freedoms of our press and our society. A new law is needed to ensure that the importance of journalism and free press in the UK is fairly upheld and protected.”
Nik Williams, Policy and Campaigns Officer at Index on Censorship & Co-chair of the UK Anti-SLAPP Coalition, who coordinated this campaign initiative, said:
“Receiving a threatening legal letter can be a daunting and terrifying experience. We have spoken to many SLAPP targets who have described the turmoil, stress and emotional distress, as well as the financial implications, that this brings. Without a universal and accessible anti-SLAPP Law, everyone who speaks out in the public interest will remain vulnerable to the type of threat sent to every MP. The UK Anti-SLAPP Coalition renews our call for the UK Government to move fast to protect free speech and british courts from the type of abuse that stifles all speech, whether that is a journalist reporting on an oligarch, a sexual abuse survivor naming their attacker, or a local campaigner standing up for their community.”
For press enquiries, please contact: Jessica Ní Mhainín, head of policy and campaigns at Index on Censorship & Co-chair of the UK Anti-SLAPP Coalition: [email protected]
Notes:
● The UK Anti-SLAPP Coalition website
● Photo credit: Tania Naiden
● The legal letter was emailed to every MP on Wednesday 11 September. A printed version of the letter was also posted to a small number of MPs. You can see the letter below.
● The Model Anti-SLAPP Law prepared by the UK Anti-SLAPP Coalition.
Background:
The UK Anti-SLAPP Coalition is an informal working group established inJanuary 2021, co-chaired by the Foreign Policy Centre, Index on Censorship and CliDef. It comprises a number of freedom of expression, whistleblowing, anti-corruption and transparency organisations, as well as media lawyers, researchers and academics who are researching, monitoring and highlighting cases of legal intimidation and SLAPPs, as well as seeking to develop remedies for mitigation and redress.
It’s been a hectic week in British politics after a Labour government was elected in a landslide last week. There are reported to be 30 new bills which will be announced in the King’s speech as part of the state opening of parliament next Tuesday.
As our CEO Jemimah Steinfeld indicated in last week’s newsletter, we at Index are keeping a beady eye on how much new Prime Minister Keir Starmer and his government will prioritise freedom of expression at home and abroad. To help guide his thinking, we have put together this manifesto, a wishlist for freedom of expression under the new government.
So far the signs are encouraging. As one of his first acts in office, the new foreign secretary David Lammy called for the immediate release of Russian-British journalist Vladimir Kara-Murza whose plight Index highlighted in April this year. Kara-Murza is languishing in a Russian penal colony in Omsk and there were fears this week for his health after it was reported that he had been moved to the prison’s hospital.
Lammy said in his statement : “His [Kara-Murza’s] absurd 25-year sentence shows the Kremlin’s deep fear that more Russians will know the reality of Putin’s illegal war – and is further evidence of the targeted repression of the opposition.” He also called for his lawyer to have permission to visit him, which subsequently happened.
In other encouraging news for free speech in the UK, human rights lawyer Richard Hermer KC was appointed attorney general. A former colleague of Starmer’s, he will serve in government from the House of Lords. He has a distinguished career fearlessly standing up for human rights highlighted today in a Guardian profile. He recently gave legal advice that the so-called BDS bill proposed by the Conservative government, would stifle free speech. The bill (which never became law) was introduced by the then communities secretary Michael Gove to stop local councils and other public bodies economically boycotting countries like Israel. The new solicitor general, freshly elected MP Sarah Sackman, also worked with Hermer at Matrix Chambers.
Meanwhile Index – as co-chairs of the Anti-SLAPP coalition – has written a letter to the Prime Minister to ask for a bill to be introduced next Tuesday, putting protections in place which prevent Strategic Lawsuits Against Public Participation (SLAPPs). Legislation had been introduced as a private members bill in the last parliament. It garnered cross-party support, but never became law. The letter, signed by Index’s Jessica Ní Mhainín and Nik Williams, calls for that bill to be revived and strengthened. As we highlight, these kind of lawsuits not only hinder clampdowns on fraud and corruption, but silence many ordinary people including “sexual violence survivors speaking out after the police or the CPS have refused to bring criminal charges, patients of healthcare services posting reviews to highlight concerns regarding their care, as well as members of the public scrutinising a wide variety of services they have received.” If the Labour government were to introduce a comprehensive Anti-SLAPP law early in their administration, it would be a brave and tangible indication of their commitment to free expression. In the meantime we are holding an event in Dublin on SLAPPs in October and you can sign up for tickets here.
Over sixty editors, journalists, writers, publishers, academics, and experts have written to Justice Secretary Alex Chalk KC MP calling on the Government to support amendments to the Strategic Litigation Against Public Participation Bill. Signatories include the editors of DMG Media, The Wall Street Journal, The Guardian, The Telegraph, The Times and The Sunday Times, Private Eye, and The Economist.
“We are closer than ever to establishing a standalone anti-SLAPP law, but we cannot let its roximity stop us from ensuring the Bill does what it is intended to: protecting public interest speech from being silenced by SLAPPs,” the letter said.
The signatories are calling on the Government to address the fundamental flaw at the centre of the Bill’s early dismissal mechanism that requires a court to make a subjective judgement as to the intent of a SLAPP claimant in order to determine whether the legal action can be identified as a SLAPP. They echo concerns raised by the Law Society and MPs, that identifying a claimant’s intent “is a notoriously difficult, time-intensive, expensive and uncertain process that would undermine the effective operation of the protections the law provides.”
The signatories highlight concerns that deficiencies of the Economic Crime and Corporate Transparency Act (ECCTA) were previously made clear to the Government, but yet have been replicated in full in the Anti-SLAPP Bill.
“If enacted in its current form, the Bill risks becoming an ineffective, inaccessible, and ultimately redundant legal instrument,” the letter said. “[B]y making a small but important amendment, we can ensure courts and judges are able to make timely, consistent and evidence-based determinations of SLAPP cases before legal costs have accrued.”
The signatories also called for the definition of public interest in the Bill to be refined in order to further strengthen the legislation. “We believe the current definition of public interest could introduce unnecessary uncertainty, which must be avoided for this Bill to be effective”, they said.
“[A]n Anti-SLAPP Law must be accessible, simple and trusted by public watchdogs to effectively protect free expression,” the signatories said.
Katharine Viner, Editor-in-Chief, The Guardian said: “SLAPPs threaten free speech and a free press by enabling those with deep pockets to harass, intimidate and exhaust critics with the goal of deterring public interest journalism. We welcome the work to get a workable anti-SLAPP law in place, with these small changes being vital to making that happen.”
Catherine Belton, International investigative reporter, Washington Post, Author, Putin’s People, said: “It’s really important that after all the crusading work by NGOs and MPs, journalists don’t end up with a law that is ultimately ineffective or worse, counterproductive, in combating SLAPPs. In its current form, the proposed legislation would not improve the situation for any journalist and instead more likely strengthen any claimant’s hand, as it will be near impossible to prove a claimant’s intent. This law must be urgently amended, otherwise we risk shooting ourselves in the foot.”
Here is the full letter to Alex Chalk KC MP sent on 10 April 2024:
Rt. Hon. Alex Chalk KC MP, Secretary of State for Justice
Rt. Hon. Rishi Sunak MP, Prime Minister of the United Kingdom
Rt. Hon. Lucy Frazer KC MP, Secretary of State for Digital, Culture, Media and Sport
Ms. Julia Lopez MP, Minister of State (Department for Culture, Media and Sport)
Rt. Hon. Lord Cameron, Secretary of State for Foreign, Commonwealth and Development Affairs
Ms. Shabana Mahmood MP, Shadow Labour Secretary of State for Justice
Rt. Hon. Alistair Carmichael MP, Liberal Democrat Spokesperson for Home Affairs, Justice and Northern
Ireland
Mr. Chris Stephens MP, Shadow SNP Spokesperson (Justice)
Mr. Paul Philip, Chief Executive, Solicitors Regulation Authority
Mr. Mark Neale, Director-General, The Bar Standards Board
Mr. Matthew Hill, Chief Executive, Legal Services Board
Mr. Michael O’Flaherty, Council of Europe Commissioner for Human Rights
Ms. Teresa Ribeiro, Organization for Security and Co-operation in Europe Representative on Freedom of the
Media
Mr. Volker Türk, United Nations High Commissioner for Human Rights
Ms. Irene Khan, United Nations Special Rapporteur on the Promotion and Protection of the Right to Freedom of
Opinion and Expression
10 April 2024
Dear Rt. Hon. Alex Chalk KC MP,
We are contacting you ahead of the committee stage of the Strategic Litigation Against Public Participation Bill, a Private Members’ Bill brought by Wayne David MP to support the small but crucial amendment proposed by the UK Anti-SLAPP Coalition. We are closer than ever to establishing a standalone anti-SLAPP law, but we cannot let its proximity stop us from ensuring the Bill does what it is intended to: protecting public interest speech from being silenced by SLAPPs. As drafted we fear the Bill falls short of the necessary protections needed to achieve this goal.
Since the anti-SLAPP amendment was published in the Economic Crimes and Corporate Transparency Act (ECCTA) last year, stakeholders on both sides of the SLAPP debate have raised concerns about the efficacy of the Government’s approach. The deficiencies of the ECCTA’s anti-SLAPP provisions have been made clear to the Government, yet they have been reproduced in their entirety in the Private Members’ Bill. If enacted in its current form, the Bill risks becoming an ineffective, inaccessible, and ultimately redundant legal instrument.
However, there is still an opportunity to remedy this to ensure it is a Bill that will serve its purpose. Currently, the definition of a SLAPP requires a court to make a subjective judgement as to the intent of a claimant in order to determine if the legal action in question can be identified as a SLAPP. This is a notoriously difficult, time-intensive, expensive and uncertain process that would undermine the effective operation of the protections the law provides. Using the subjective test will hinder the early dismissal mechanism that sits at the heart of this Bill, but by making a small but important amendment, we can ensure courts and judges are able to make timely, consistent and evidence-based determinations of SLAPP cases before legal costs have accrued.
As the Bill comes before the Bill Committee for scrutiny, we call for the Government to support amendments to Clause 2(1) to replace the subjective test with an objective test. This would give SLAPP targets greater certainty, while also providing the clarity courts need to effectively apply the new mechanism.
Refining the definition of public interest in the Bill would further strengthen this piece of legislation. We believe the current definition of public interest could introduce unnecessary uncertainty, which must be avoided for this Bill to be effective. While the examples in the Bill are only illustrative, it is vital that the definition demonstrates the breadth and diversity of public interest reporting to give confidence to public watchdogs.
This close to establishing an Anti-SLAPP Law that is universal in scope, we must ensure it can live up to the expectations of everyone who speaks out in the public interest. Only then will free expression be protected.
We hope that you agree that an Anti-SLAPP Law must be accessible, simple and trusted by public watchdogs to effectively protect free expression.
Kind regards,
Editorial and media senior management
Rozina Breen, CEO, The Bureau of Investigative Journalism (TBIJ)
Paul Dacre, Editor-in-Chief, DMG media
Chris Evans, Editor, The Telegraph
Tony Gallagher, Editor, The Times
Alessandra Galloni, Editor-in-Chief, Reuters
Isabel Hilton, Co-Chair, TBIJ
Ian Hislop, Editor, Private Eye
John Micklethwait, Editor-in-Chief, Bloomberg News
Zanny Minton Beddoes, Editor-in-Chief, The Economist
Paul Radu, Co-Executive Director, OCCRP
Richard Sambrook, Co-Chair, TBIJ
Aman Sethi, Editor-in-Chief, openDemocracy
Drew Sullivan, Publisher, Organized Crime and Corruption Reporting Project (OCCRP)
Ben Taylor, Editor, The Sunday Times
Emma Tucker, Editor-in-Chief, The Wall Street Journal
Ted Verity, Editor, The Daily Mail
Katharine Viner, Editor-in-Chief, The Guardian
Paul Webster, Editor, The Observer
Franz Wild, Editor, TBIJ
Associations, foundations and media support organisations
Lionel Barber, Chairman, The Wincott Foundation
Sarah Baxter, Director, Marie Colvin Center for International Reporting
Matthew Caruana Galizia, Director, The Daphne Caruana Galizia Foundation
Anthony Fargo, Director, Center for International Media Law and Policy Studies
George Freeman, Executive Director, Media Law Resource Center
Alexander Papachristou, Executive Director of the Cyrus R. Vance Center for International Justice
Michelle Stanistreet, General Secretary, National Union of Journalists
Sayra Tekin, Director of Legal, News Media Association
Lawyers and other legal professionals
Rupert Cowper-Coles, Partner and Head of Media, RPC
Matthew Dando, Partner and Head of Media Litigation, Wiggin LLP
David Hooper, Media Lawyer and writer on SLAPPs, Author, Buying Silence
Matthew Jury, Managing Partner, McCue Jury & Partners LLP
Baroness Helena Kennedy of the Shaws KC, Director, International Bar Association’s Human Rights Institute
Nicola Namdjou, General Counsel at Global Witness
Gill Phillips, Editorial Legal Consultant
David Price KC
Pia Sarma, Editorial Legal Director, Times Newspapers Ltd
Mark Stephens CBE, Lawyer, Co-Chair International Bar Association Human Rights Committee, Trustee, Index on Censorship
Samantha Thompson, Media Defence Lawyer, RPC
Writers, journalists and authors
Catherine Belton, International investigative reporter, Washington Post, Author, Putin’s People
Tom Bergin, Author and investigative journalist, Reuters
Richard Brooks, Journalist, Private Eye
Bill Browder, Author, financier, and Head of Global Magnitsky Justice campaign
Tom Burgis, Author and investigations correspondent, The Guardian
Paul Caruana Galizia, Reporter, Tortoise Media
Bill Emmott, Journalist, author, and former editor-in-chief of The Economist
Peter Geoghegan, Journalist and author
George Greenwood, Investigations Reporter, The Times
Eliot Higgins, Author and journalist
Edward Lucas, Author, European and transatlantic security consultant and fellow at the Center for European Policy Analysis (CEPA)
Thomas Mayne, Researcher and writer
Trevor Phillips, Broadcaster, writer and chair of Index on Censorship
Clare Rewcastle Brown, Journalist
Publishers
José Borghino, Secretary General, International Publishers Association
Dan Conway, CEO, Publishers Association
Andrew Franklin, Founder and publisher, Profile Books and trustee of Index on Censorship
Arabella Pike, Publishing Director, HarperCollins Publishers
Nicola Solomon, Chief Executive, Society of Authors
Academics
Peter Coe, Associate Professor in Law, Birmingham Law School, University of Birmingham
John Heathershaw, Professor of International Relations, University of Exeter
Andrew Scott, Associate Professor, London School of Economics and Political Science
Ursula Smartt, Media Lawyer, Associate Professor of Law, Northeastern University London
Media Contacts
For any questions or quotes from the Coalition, or to organise any media engagement on this, please contact [email protected]
Notes
● The letter was coordinated by the UK Anti-SLAPP Coalition, which is an informal working group established in January 2021, co-chaired by the Foreign Policy Centre, Index on Censorship and CliDef. It comprises a number of freedom of expression, whistleblowing, anti-corruption and transparency organisations, as well as media lawyers, researchers and academics who are researching, monitoring and highlighting cases of legal intimidation and SLAPPs, as well as seeking to develop remedies for mitigation and redress.
● For more information about the Coalition – www.antislapp.uk
● The letter sent to Alex Chalk KC MP with the full signatory list – https://antislapp.uk/wp-content/uploads/2024/04/Anti-SLAPP-Amendment-Letter-to-Alex-Chalk-KC-MP-1.pdf
● The Strategic Litigation Against Public Participation Bill – https://publications.parliament.uk/pa/bills/cbill/58-04/0021/230021.pdf
● For more details about the proposed amendment – https://antislapp.uk/wp-content/uploads/2024/04/Amendment-Text.pdf
● The UK Anti-SLAPP Coalition response to the publication of the Anti-SLAPP Private Members’ Bill – https://antislapp.uk/2024/02/20/anti-slapp-pmb-amendments/
● The UK Anti-SLAPP Coalition response to the publication of the ECCTA – https://antislapp.uk/2023/10/26/a-landmark-moment-but-we-cant-stop-here/