What is ‘lawfare’? 

The term lawfare generally refers to the use of law to achieve an operational military objective. Recently, it has also been used in reference to legal claims brought against the military.  

What are ‘SLAPPs’? 

The acronym ‘SLAPP’, coined in the USA, stands for ‘Strategic Litigation Against Public Participation’. It refers to legal claims which are perceived to be brought in order to silence a critic by engaging them in costly litigation, rather than because of their legal merit.  

Defamation claims are most often identified as SLAPPs, although other legal claims relating to the publication of information may also relevant, such as privacy or data protection.  

Such cases have been said to cause a ‘chilling effect’ on freedom of expression, by deterring journalists and others from publishing criticism or allegations of wrongdoing with the threat of legal action.  

This tactic may be particularly effective where the threatened litigation carries the risk of the loser paying very high costs to the winner, especially if there is a disparity in the parties’ resources.   

A number of US states have introduced ‘anti-SLAPP’ laws to deter this practice. These vary, but generally work by providing a procedural mechanism by which a defendant can apply to have a claim against them dismissed at an early stage before significant costs have accrued, particularly where a publication concerns a matter of public interest.  Such laws are underpinned by the First Amendment to the US Constitution, which protects freedom of speech.

Recent ‘SLAPP’ cases 

Several recent cases have been identified by NGOs and think tanks as SLAPPs. These include: 

Defamation law in England and Wales  

The basis for a defamation claim in relation to a published statement is that the statement complained of referred to the claimant; that it was defamatory of them; and that the defendant was responsible for the publication. The statement must also be false. 

The definition of what constitutes a “defamatory” statement is something that has been developed by the courts. A widely used definition is: 

A statement should be taken to be defamatory if it would tend to lower [the claimant] in the estimation of right-thinking members of society generally, or be likely to affect a person adversely in the estimation of reasonable people generally. Skuse v Granada Television [1993] EWCA Civ 34 

This definition is supplemented by the requirement in section 1 of the Defamation Act 2013 (the “2013 Act”), which provides that a statement is not defamatory “unless its publication has caused or is likely to cause serious harm to the reputation of the claimant”. 

‘Publication’ in this context simply means a communication of the statement complained of to someone other than the claimant.  

If the grounds for a claim are met, the claimant would be entitled to recover damages unless the defendant can establish that they have a defence. Defences include truth; honest opinion; publication on a matter of public interest; and various forms of privileged publication, such as court proceedings.   

The upper limit for compensatory damages in defamation proceedings is currently approximately £300k for the ‘gravest of allegations’.  

The rules governing the award of costs in defamation litigation are complex, and there have been recent attempts to limit recoverable costs and to encourage the courts to manage costs budgets in advance. However, it remains the position that the winning party will generally be entitled to recover their legal costs from the losing party, and these can significantly exceed damages awards 

Libel tourism 

Defamation cases with a foreign element – where the defendant is in another jurisdiction, or the publication occurred in another jurisdiction – are sometimes referred to as ‘libel tourism’. The term reflects concern that claimants may choose to litigate in England even when the link with the jurisdiction is tenuous, because the law is seen to be ‘claimant friendly’ compared with other jurisdictions. 

Parliament sought to address this is by enacting section 9 of the Defamation Act 2013, which provides that an action cannot be brought against a defendant who is not domiciled in the UK, unless satisfied that, of all the places in which the statement has been published, England and Wales is clearly the most appropriate. The scope of this provision was limited at the time.

Resources

Debates

World Press Freedom Day, HC Deb 27 May 2021

Safety of Journalists, HC Deb 10 June 2021

Parliamentary Questions

Libel and Defamation Cases: Cost to Public Funds 

HL questions, Vol 812, 14 June 2021

Committees

Russia 

Intelligence and Security Committee of Parliament  

July 2020

Government response to the Intelligence and Security Committee of Parliament Report ‘Russia’ 

HMG  

July 2020 

 

Organisations, NGOs, etc 

The UK’s kleptocracy problem (chapter 05 05 Reputation laundering and political influencing) 

Chatham House 

8 December 2021 

SLAPP: the background of Strategic Lawsuits Against Public Participation

European Centre for Press and Media Freedom 

Coalition Against SLAPPs in Europe (CASE) 

Countering legal intimidation and SLAPPs in the UK 

UK Anti-SLAPP Coalition

July 2021

Strategic Lawsuits Against Public Participation (SLAPP) in the European Union: A comparative study

EU-Citizen: Academic Network on European Citizenship Rights

30 June 2021

 

The Use of SLAPPs to Silence Journalists, NGOs and Civil Society 

European Parliament  

14 June 2021 

 

A gathering storm: the laws being used to silence the media 

Index on Censorship 

May 2020 

 

UK Anti-SLAPP WG: Proposals for Procedural Reform: Judicial Guidance, Civil Procedural Reform, and a UK Anti-SLAPP Law 

UK Anti-SLAPP Working Group 

 

Anti-SLAPP Conference: Resources 

 

Media, blogs, press releases 

Arron Banks suing Carole Cadwalladr for libel is free speech concern, High Court hears 

Press Gazette 

14 January 2022 

 

Sixteen organisations reiterate their support for Carole Cadwalladr as she faces SLAPP trial 

European Centre for Press and Media Freedom 

14 January 2022 

 

HarperCollins and Belton settle with Abramovich over Putin’s People 

The Bookseller 

22 December 2021 

 

Judges and lawyers call for curbs on misuse of SLAPPs 

Legalfutures 

30 November 2021 

 

UK: 19 organisations condemn the lawsuits against Catherine Belton and HarperCollins, deeming them “SLAPPs 

Article 19 

24 November 2021 

 

Call for shaming of ‘SLAPP’ solicitors 

Law Society Gazette 

24 November 2021 

 

Fifteen organisations condemn lawsuits brought by ENRC against the Financial Times, Harper Collins, and journalist Tom Burgis in London 

European Centre for Press and Media Freedom 

8 October 2021 

 

London, libel and reputation management 

Financial Times 

9 May 2021 

 

The increasing rise, and impact, of SLAPPs: Strategic Lawsuits Against Public Participation 

The Foreign Policy Centre 

9 December 2020