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The future of news Contents

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Chapter 8: SLAPPs

Investigative journalism and SLAPPs

193.The final issue we examined was the legal and security risks of investigative journalism. Professor Nielsen summarised the challenges: “it is expensive, it is uncertain and you might get sued”.386 The most pernicious form of intimidation involves ‘strategic litigation against public participation’, or SLAPPs.387 The previous Government described these as “an abuse of the legal process, where the primary objective is to harass, intimidate and financially and psychologically exhaust one’s opponent”.388 Fiona O’Brien, Bureau Director of Reporters Without Borders, said SLAPPs make journalists “self-censor, stop reporting on stories, and stop doing investigations because [of] the fear of legal action” and insurmountable legal fees.389

194.Over the past two years we have engaged with numerous departments and the Solicitors Regulation Authority to advocate proportionate protections.390 Valuable progress includes action to prevent sanctioned individuals receiving waivers to sue UK journalists; the establishment of a SLAPPs Taskforce; and more proactive work from the regulator. Susan Coughtrie, Director of the Foreign Policy Centre, cautioned however that “none of it will actually hold water if the legislative and regulatory side does not bear fruit”.391

Background to legislation

195.In 2022 the Government consulted on SLAPPs and committed to legislate. In 2023 the Government amended the Economic Crime and Corporate Transparency (ECCT) Bill to include some anti-SLAPP protections.392 We welcomed this, while noting that the definition was restricted to economic crime and hence excluded a wide range of topics. The (then) Lord Chancellor and the Secretary of State for Culture, Media and Sport committed to more comprehensive legislation “at the earliest opportunity”.393

196.In February 2024 a Government-backed Private Member’s Bill sponsored by the then Labour MP Wayne David had its second reading.394 This sought to address the ECCT’s deficiencies. Due to the 2024 General Election the Bill was not passed.

Getting legislation right

197.Any anti-SLAPP legislation must be balanced. The principle of preventing abuses is sound, though doing this in ways that maintain access to justice is more complex. As former justice minister Lord Bellamy argued, “the key problem is to distinguish access to justice from harassment. It is quite difficult, but it can be done”.395

198.New rules should make it harder for claimants and less lucrative for law firms to pursue SLAPP cases. Not everyone seems enthusiastic. The Society of Media Lawyers, a recent industry group, says calls to tackle SLAPPs “grossly exaggerates the problem”, lacks a “proper evidential basis” and risks “oppressive regulatory pressure”. The group stated that its members “play an important role in providing access to justice” and criticised the idea of “accepting, as an established fact, that there is a SLAPP issue requiring a legislative response”.396

199.The experience of the Private Member’s Bill suggests that more transparent engagement will be needed to uphold public confidence that the Government is taking the right approach. Sayra Tekin, Director of Legal at the News Media Association, said the first version of the Bill (which was developed with significant Government involvement) contained numerous deficiencies that would have made the situation worse, not better.397 We wrote to the (then) Lord Chancellor recommending changes, but struggled to understand why an anti-SLAPP Bill was so drafted in the first place.398 Ms Tekin believed that the issues stemmed in part from Ministry of Justice officials who she thought were:

“trying to balance the interests of claimant lawyers against SLAPP victims, which seems to be entirely the wrong starting point … It perhaps gives an indication of why this Bill … has been framed in this way, because it is extremely claimant litigants-friendly … We have gone from a Government [who] said, “Abuse of the system will not be tolerated” to … tolerating a certain level of abuse—harassment, harm, distress—not as a corollary of bringing litigation but the very intent of it.”399

200.In July 2024 the new justice minister Lord Ponsonby of Shulbrede said that the Government had “every intention” of continuing discussions about SLAPPs.400 The Minister for Sport, Media, Civil Society and Youth acknowledged that SLAPPs legislation was not in the King’s speech. She told us that legislation was a Ministry of Justice lead and assured us that she would discuss it with them.401

201.The new Government is failing to prioritise anti-SLAPP legislation. This is troubling and has serious potential consequences for press freedom and the future of the news industry. There has already been a public consultation. Viable legislative options and precedents exist. What is missing now is political will. Its absence reflects poorly on the new Government’s values and commitment to justice. We are not persuaded that the complexity of the issue, or the need for cross-government engagement, are a valid excuse for lengthy delays. The Government should publish draft legislative proposals before the 2025 summer recess and allow time for proper scrutiny. If necessary it should explore using the Victims, Courts and Public Protection Bill, announced in the recent King’s Speech, as a vehicle.

202.Anti-SLAPP legislation is unlikely to be supported by everyone in the legal profession. Some concerns are valid, others less so. The Ministry of Justice must learn lessons from the experience of developing the Strategic Litigation Against Public Participation Bill introduced in the previous session of Parliament. We heard that it was initially drafted in ways that would make the situation worse. We would like to understand the process by which this came about.

203.In response to this report the Ministry of Justice should publish an exhaustive list of stakeholders it engaged with in relation to the development of the Private Member’s Bill between May 2023 and May 2024. This should include the names of organisations, meeting dates and topics, and substantive written correspondence.

Solicitors Regulation Authority

Flawed evidence base?

204.We were pleased to hear that the Solicitors Regulation Authority (SRA) has made significant progress on SLAPPs. Its CEO Paul Philip said the SRA had received 71 cases, of which 48 were live (as of May 2024) and two of the most serious had been referred to the Solicitors Disciplinary Tribunal. The SRA had also issued warning notices.402 These actions represent a substantial improvement since we first took evidence from them.403

205.We struggled however to follow the logic behind its recent approach to gathering evidence. A thematic review published in February 2023 found “no evidence” of abusive practices.404 The methods though involved reviewing just two closed files per firm, and excluded all of the firms under investigation for conducting suspected SLAPP activity. Other reviews apparently followed similar practices.405 The Society for Media Lawyers has cited the 2023 review’s finding as evidence that SLAPPs are overblown.406

206.We asked Mr Philip if it was a coincidence that the SRA had found no evidence of SLAPPs wrongdoing, if the SRA reviews deliberately excluded all of the firms under investigation for alleged SLAPPs. He acknowledged the conundrum but said that the reviews should not “prejudice the investigation”, and believed that the SRA needed to avoid accusations of “inappropriate” behaviour or “fishing expeditions”. He suggested that statutory powers for inspections would be needed to enable more targeted assessments.407

207.We applaud the progress made by the Solicitors Regulation Authority (SRA) in recent years. However, we do not agree that it should conduct thematic evaluations of SLAPPs that deliberately exclude the law firms accused of malpractice. Predictably and implausibly, these evaluations have found limited evidence of wrongdoing. This risks creating a flawed evidence base to inform public debate. With transparent governance structures and information firewalls between teams, it should be possible to conduct multiple separate engagements with the same firm without prejudicing the outcome of investigations.

208.The SRA’s future reviews of SLAPP activity should not exclude law firms subject to ongoing investigations. The Government should also review whether the SRA has the necessary inspection powers to enable more targeted assessments.

Inadequate fines

209.We have made repeated calls to raise the SRA’s £25,000 fining limit (only recently raised from £2,000) which applies to traditional solicitors’ firms. The SRA can fine other types of licensed bodies (Alternative Business Structures) and the solicitors working there up to £250 million and £50 million respectively. We have been unable to discern any clear rationale for this discrepancy.408 The SRA has described its fining powers as “pea-shooter against a tank”.409

210.In 2023 we sought to amend the Economic Crime and Corporate Transparency (ECCT) Bill to address this imbalance. The Government’s subsequent changes to the Bill empowered the SRA to levy higher fines for cases related specifically to economic crime. The implications for tackling SLAPPs remains unclear. Mr Philip told us that the Act had increased his fining powers only for a “very definite list of economic crimes but not for this type of issue at all.”410 Juliet Oliver, General Counsel at the SRA, said they would need to try to prove that the conduct of the solicitor “prevented the investigation or detection of economic crime” and had breached the SRA’s rules.411 This appears to be a high bar. Mr Philip has “formally requested” broader fining powers and said the matter lies with the Legal Services Board.412

211.The £25,000 fining limit for the Solicitors Regulation Authority is too low. The changes in the Economic Crime and Corporate Transparency (ECCT) Act 2023 are a welcome start but appear too tightly circumscribed to have the desired effect. The Legal Services Board should work with the Ministry of Justice to raise the fining limit to £250 million for SLAPPs. We would be grateful for a progress update before the 2025 summer recess.

Outsourcing the problem

212.During previous inquiries we have heard numerous allegations that law firms engage private investigative or PR firms to intimidate and smear defendants.413 The SRA has said that some solicitors are not doing enough to ensure the organisations they instruct are acting lawfully and ethically. Few firms in the regulator’s recent review had a written policy on due diligence in checking third party agents, for example.414 The SRA said however that their powers of investigation do not extend to third parties.415

213.The Government should extend the SRA’s remit to ensure that activities commissioned directly by solicitors can be subject to regulatory oversight. This would prevent lawyers from outsourcing harassment to third parties without scrutiny.

National Action Plan for the Safety of Journalists

214.We heard praise for the Government’s SLAPPs taskforce. Susan Coughtrie said it was usefully joining up action on physical surveillance, trolling and other harassment that typically accompanies SLAPPs.416 Fiona O’Brien noted ongoing challenges though, including limited funding for a new tracker led by the National Union of Journalists, a “lack of engagement” from social media platforms, and police forces that have “largely been absent”.417 There is still no standard way of recording intimidation or assaults against journalists across police forces, for example.418 Further worries were raised about transnational repression. The Government has provided welcome recognition of the issue,419 but the scale of security threats (including kidnap and assassination efforts) remains concerning.420

215.We commend the Government’s progress in establishing the SLAPPs Taskforce. We urge participants to maintain momentum. Particular attention should be paid to engaging the police to establish a standard way of reporting intimidation of journalists, and tackling transnational repression from foreign states.

Proceeds of crime

216.The use of illicit money to fund SLAPPs remains a concern. We have been told previously that payment for legal services to facilitate SLAPPs is not covered by Anti-Money Laundering legislation.421 The Law Society has highlighted risks around “professional enablers” evading money laundering or due diligence checks.422 Clare Rewcastle Brown, a journalist, previously told us that she had informed a law firm that the funds used for a SLAPP case were illicit: “Invariably, they have said that they have satisfied themselves … They clearly do not have the due diligence that the financial services industry has”.423

217.The previous Government told us that the regulator could update its guidance on money laundering.424 This appears unlikely to solve the more fundamental issue that the statutory basis for the regulator to intervene is weak. The SRA told us that:

“in order for us to sanction lawyers for wrongdoing if they accept criminal property as funding for SLAPP cases, it would in our view be important for legislation to be enacted to make the position under POCA clear: for example, by putting beyond doubt that section 327 (the offence of ‘concealing, converting, transferring, disguising, removing’ stolen property) applies to the taking of monies for legal fees in certain circumstances.”425

218.Gathering more evidence on these risks appears difficult given the regulator’s limited ability to conduct spot checks or require source of wealth investigations. Changing the Proceeds of Crime Act 2002 would therefore have merit in clarifying the law, preventing abuses and enabling the regulator to obtain evidence of wrongdoing.426

219.We remain concerned that SLAPPs can be financed by illicit money. We appreciate the sensitivities: everyone has a right to pay for legal representation. But SLAPPs are not a form of access to justice—they are an abuse of the system. The Government has been oddly reluctant to deal with this problem.

220.The Government should amend section 327 of the Proceeds of Crime Act 2002 to clarify that subsection (1) applies to the acceptance of proceeds of crime as payment for legal services. If necessary this could specify the application to services provided in relation to litigation which has the intention or effect of supressing reporting on matters of public interest.

221.The Government should also update Anti-Money Laundering legislation to ensure solicitors have to conduct more comprehensive due diligence, including source of wealth and customer background checks, for cases that concern matters of public interest. The SRA should be given powers to conduct spot checks to provide an effective deterrent.

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