Eco Advocacy

[Strategic Lawsuits Against Public Participation]

SLAPP's are a flagrant abuse of process, which are sadly enabled by some unscrupulous legal practitioners. SLAPP's have been a problematic feature in the US, the UK, Europe and may other jurisdictions worldwide. They are a form of collateral litigation on innocent parties in an effort to apply pressure on a victim to silence them. The term "SLAPP" has been coined to cover it. Environmental defenders and investigative journalists have been the principal targets. The following is an extract from an anti-Slapp handbook (link below).

"SLAPPs [or Strategic Lawsuits Against Public Participation] are often threatened or filed with the intent of silencing participation and stifling public debate. SLAPPs function by harassing and intimidating individuals, in essence creating a “chill” in public participation. Defending a SLAPP involves a substantial drain of resources (namely money, energy and time) even if victory on the legal front is assured. The end result is that the suit may not be successful in court, but it has served to delay, silence and harass protestors. Whole communities can often become silenced out of fear of being dragged into a lawsuit."

The acronym was coined in the 1980s by University of Denver professors Penelope Canan and George W. Pring. The term was originally defined as "a lawsuit involving communications made to influence a governmental action or outcome, which resulted in a civil complaint or counterclaim filed against nongovernment individuals or organisations on a substantive issue of some public interest or social significance." The concept's originators later dropped the notion that government contact had to be about a public issue to be protected by the right to petition the government, as provided in the First Amendment to the United States Constitution. It has since been defined less broadly by some U.S. states, and more broadly in one state (California) where it includes suits about speech on any public issue.

The original conceptualization proffered by Canan and Pring emphasized the right to petition as protected in the United States under the US Constitution's specific protection in the First Amendment's fifth clause. It is still definitional: SLAPPs are civil lawsuits filed against those who have communicated to government officialdom (in its entire constitutional apparatus). The right to petition, granted by Edgar the Peaceful, King of England in the 10th century, antedates Magna Carta in terms of its significance in the development of democratic institutions. As currently conceived, the right claims that democracy cannot properly function in the presence of barriers between the governed and the governing.

New York Supreme Court Judge J. Nicholas Colabella said in reference to SLAPPs: "Short of a gun to the head, a greater threat to First Amendment expression can scarcely be imagined." In the United States a number of jurisdictions have made such suits illegal, however the conditions that a defendant must satisfy for a dismissal of the suit vary from state to state. In some states, such as California, defendants may be entitled to counter-sue SLAPP plaintiffs under some circumstances. This is commonly referred to as SLAPPback.

According to the American scholarship, SLAPP is something different than an ‘ordinary’ attack to free speech: SLAPP’s aim to shut down critical speech by intimidating critics and draining their resources, undermining their active public engagement. Moreover, one core characteristic of this kind of actions is the disparity of power and resources between the plaintiff and the defendant.

Often based upon ambiguous and elastic law provisions, SLAPPs use several strategies to exhaust resources and morale, generally including exorbitant claims for damages and allegations designed to smear, harass and overwhelm activists and/or civil society organisations. As underlined by the Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association, a particular country’s environment can be more or less fertile for SLAPP’s. It depends on different factors, such as how expensive legal costs are, the elasticity of laws targeting speech (especially defamation), and the existence of safeguards (e.g. anti-SLAPP statutes or cost awards against abuse of process).

Plaintiffs know from the beginning their charges are groundless or exaggerated. However, they also know that being sued and facing investigations and an eventual trial is both expensive and time consuming. Consequently, vexatious lawsuits can have great chilling effects, refraining the journalist, media operator or undesired speaker from exercising again her or his right to criticise or to report.

In a typical SLAPP, the plaintiff does not normally expect to win the lawsuit. The plaintiff's goals are accomplished if the defendant succumbs to fear, intimidation, mounting legal costs, or simple exhaustion and abandons the criticism. In some cases, particularly in the context of investigative journalism, repeated frivolous litigation against a defendant may raise the cost of directors and officers and other liability insurance for that party, interfering with an organization's ability to operate. SLAPP’s bring about freedom of speech concerns due to their chilling effect and are often difficult to filter out and penalise because the plaintiffs attempt to obfuscate their intent to censor, intimidate, or silence their critics.

A common feature of SLAPP’s is forum shopping, wherein plaintiffs find courts that are more favourable towards the claims to be brought than the court in which the defendant (or sometimes plaintiffs) live.

Other widely mentioned elements of a SLAPP are the actual effectiveness at silencing critics, the timing of the suit, inclusion of extra or spurious defendants (such as relatives or hosts of legitimate defendants), inclusion of plaintiffs with no real claim (such as corporations that are affiliated with legitimate plaintiffs), making claims that are very difficult to disprove or rely on no written record, ambiguous or deliberately mangled wording that lets plaintiffs make spurious allegations without fear of perjury, refusal to consider any settlement (or none other than cash), characterization of all offers to settle as insincere, extensive and unnecessary demands for discovery, attempts to identify anonymous or pseudonymous critics, appeals on minor points of law, and demands for broad rulings when appeal is accepted on such minor points of law. In some instances it is clear that plaintiffs are attempting to drain defendants of their financial resources by making the lawsuit as costly as possible, and in these cases the plaintiff's motive may not be legal victory, but merely to waste the defendant's time and money.

SLAPP’s are used by litigants to threaten parties into silence, either through the retraction of published public interest reporting (oftentimes coupled with extensive punitive threats) and threaten the right of those challenged to bring matters of public interest to wider attention and subject victims to lawsuits intended to censor their work or intimidate them. SLAPP’s also have the effect of putting enormous pressure on relationships and partnerships. For example, by going after directors individually, they seek to divide and conquer. In Ireland, at a more basic level, the 'Solicitors Letter' is often used as a form of intimidation, but a SLAPP type suit is sometimes resorted to. A favourite form of SLAPP is that of 'trespass' and 'libel' and there are numerous examples of this in many jurisdictions.

Victims are put under enormous personal pressure merely for their part in public participation in planning and environmental law matters, which they have undertaken on a voluntary and altruistic basis in defending the public interest. A person targeted with SLAPP type law suits is also being put to enormous personal expense defending these trumped up charges, as they have to field a team of lawyers to defend themselves. It will be noted that the applicants will usually be seeking damages and costs in a further attempt to intimidate and leave a victim in fear of bankruptcy. Even the threat of trumped up legal proceedings is in itself an extreme form of harassment. SLAPP type law suits also have the effect of clogging up courts with vexations and spurious litigation.

Under normal circumstances, the situation in Ireland is that cost protection is afforded to people under s.50B of the planning acts for those defending environmental issues under the various EU Directives. This is not popular amongst some developers, so by instituting proceedings against a person in their own right (as distinct from a Company or NGO), they are seeking to go after a target victim personally and inflict collateral damage. This of course defeats the whole concept of cost protection and is a direct attack on public participation as espoused under the Aarhus Convention together with various EU Directives (as transposed into into Irish law).

A huge part of the problem is the one-dimensional nature of many legal systems where each case is looked at separately through a very narrow prism. When a case comes before a court; it is considered bona fides and the applicants can march on with highly abusive Discovery applications, which the target victim is utterly powerless to resist. The adversarial nature of Common Law legal systems is also stacked against innocent victims of this type of abuse as the applicants (perpetrators if we may) go in with all guns blazing and where he who shouts the loudest often tends to win in the courts; a victim doesn’t stand a chance to meaningfully defend against this type of aggression. The applicants will typically create as much confusion as possible and essentially convince the judge to make orders, which should of course never be entertained. In January 2023, Mr Paul Philip, the Chief Executive of the Solicitors Regulation Authority (SRA) Paul Philip described the regulator's current fining power as “a pea-shooter against a tank”.

Officers of the Court

There are also major ethical issues on the part of legal practitioners who enable and facilitate such actions. In most western jurisdictions, Solicitors, barristers, attorneys are officers of the court and as such their principal duty is to uphold the Rule of Law; as such they certainly shouldn't be facilitating SLAPP type law suits or facilitating any other form of abuse of process. Courts are busy institutions with lengthy waiting lists; clogging up the courts with SLAPP type lawsuits may be considered to be a flagrant is an abuse of process. They also discredit their professions. In advancing SLAPP type litigation, they demonstrate poor judgement, a lack of integrity and a questionable moral compass. Essentially the line of client 'representation' is crossed and lawyers become the 'henchmen' or stooge for their 'clients'. This is an area which is in urgent need of scrutiny and oversight by regulatory bodies.

Pay to Punish

The concept of 'Pay to Punish' is well known in legal circles for many years. In reality, this kind of thing will not be limited to SLAPP type Litigation. Other forms of intimidation and pressure will often be encountered by victims, who may also find themselves defending investigations from various regulatory bodies on foot of complaints of a vexatious and spurious kind made against them. Erroneous or misleading complaints submitted by their 'clients’ often have the hallmarks of having been drafted by legal professionals who hide behind their client’s headed notepaper.

Various regulatory bodies will need to impose though sanctions for any lawyer (solicitor, barrister, attorney, etc) found to have enabled or who are currently enabling SLAPP type law suits. The criminal code urgently needs to be updated to put in place putative sanctions for those responsible. 

Moves are afoot at EU level to stamp out SLAPP litigation and we will endeavour to provide updates periodically. We are monitoring this situation closely and will cooperate as appropriate.

AARHUS and SLAPP

Art 3.8 of THE AARHUS CONVENTION and PROTECTION OF WHISTLEBLOWERS

Article 3(8) of the Aarhus Convention, which states: -

‘Each Party shall ensure that persons exercising their rights in conformity with the provisions of this Convention shall not be penalised, persecuted or harassed in any way for their involvement. This provision shall not affect the powers of national courts to award reasonable costs in judicial proceedings.’

The Aarhus Convention Implementation Guide (Second edition, 2014) is also helpful in elaborating on this principle in stating that: -

‘Paragraph 8 requires Parties to protect persons exercising their rights under the Convention. To some extent it reflects the so-called whistle-blower protection principle (based on the notion that someone “blows the whistle” to call the attention of the authorities to particular unlawful activities). As in many situations that involve openness and transparency and where economic interests are at stake, persons who take the risk of demanding that the rules be complied with and proper procedures followed may need to be protected from retribution.’

‘With respect to whistle-blowing more generally and not just in the workplace, Hungarian law provides that those who retaliate against persons who have made complaints in the public interest commit a misdemeanor under the Criminal Code and are subject to punishment by an imprisonment of up to one year, mandatory public service or a fine.’

People reporting planning and environmental illegality do so in the public interest and within the principals of the Aarhus Convention. It follows that they should not be subject to harassment, persecuted or penalised, and are entitled to the protection of the state.

COMMON LAW

Coercion and Harassment
In most jurisdictions it is a criminal offence to engage in Coercion and or Harassment. In Ireland this is covered by sections 9 and 10 of the Non Fatal Offences Against the Person Act. Having said that, the law will need to be updated to more specifically account for SLAPP type law suits.

FURTHER INFORMATION

Strategic lawsuit against public participation
https://en.wikipedia.org/wiki/Strategic_lawsuit_against_public_participat

DIRECTIVE (EU) 2019/1937 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 23 October 2019
on the protection of persons who report breaches of Union law
https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32019L1937

Joint JURI-LIBE Hearing on Strategic Lawsuits Against Public Participation
03-06-2021
https://www.europarl.europa.eu/committees/en/joint-juri-libe-hearing-on-strategic-law/product-details/20210601CHE08942

Business and Human Rights Resource Center
Legal Defence against SLAPPs
https://www.business-humanrights.org/en/big-issues/corporate-legal-accountability/materials-on-slapps/

Investors Caution Companies to Steer Clear of Lawsuits Against Human Rights Defenders
MONDAY, JUNE 14, 2021
https://investorsforhumanrights.org/news/investors-caution-companies-steer-clear-lawsuits-against-human-rights-defenders

Committee on Legal Affairs
Committee on Civil Liberties, Justice and Home Affairs
2021/2036(INI)
14.6.2021
DRAFT REPORT
on the strengthening democracy and media freedom and pluralism in the EU: the undue use of actions under civil and criminal law to silence journalists, NGOs and civil society
(2021/2036(INI))
https://www.europarl.europa.eu/doceo/document/CJ03-PR-693861_EN.pdf

The West Coast Environmental Law SLAPP Handbook

https://wcel.org/sites/default/files/publications/The%20West%20Coast%20Environmental%20Law%20SLAPP%20Handbook.pdf

West Coast Environmental Law
https://www.wcel.org/blog/how-should-we-slap-back-slapps

Donson, F. (2010) 'Libel Cases and Public Debate – Some Reflections on whether Europe Should be Concerned about SLAPPs', Review of European Community & International Environmental Law,
Donson, Fiona
https://cora.ucc.ie/bitstream/handle/10468/7385/8945_Donson_-_final.pdf

The Use of SLAPPs to Silence Journalists, NGOs and Civil Society
Policy Department for Citizens’ Rights and Constitutional Affairs Directorate-General for Internal Policies
PE 694.782- June 2021
https://www.europarl.europa.eu/RegData/etudes/STUD/2021/694782/IPOL_STU(2021)694782_EN.pdf

PROTECTING ACTIVISTS FROM ABUSIVE LITIGATION
SLAPPS IN THE GLOBAL SOUTH AND HOW TO RESPOND
2020
https://www.icnl.org/wp-content/uploads/SLAPPs-in-the-Global-South-vf.pdf

Environmental SLAPPs in the UK: threat or opportunity?
University of Reading
http://centaur.reading.ac.uk/44535/3/Hilson%20EP%20SLAPPs%20final%20accepted%20version.pdf

SLAPP: the background of Strategic Lawsuits Against Public Participation
https://www.ecpmf.eu/slapp-the-background-of-strategic-lawsuits-against-public-participation/

What is a SLAPP?
https://anti-slapp.org/what-is-a-slapp

REGULATION - England and Wales

SRA Statement
https://www.sra.org.uk/sra/news/press/approach-slapps/

News release
SRA updates SLAPPs warning
31 May 2024
https://www.sra.org.uk/sra/news/press/2024-press-releases/updated-slapps-warning-notice-2024/

Warning notice
https://www.sra.org.uk/solicitors/guidance/slapps-warning-notice/

SLAPPs and reputational risks
https://www.lawsociety.org.uk/topics/business-management/slapps-and-reputational-risks

BOOKS

Legal Intimidation Hardcover
1 October 2000
by Fiona Donson (Author)

SLAPPS (strategic lawsuits against public participation), are well known in the United States of America and are on the increase in the United Kingdom. SLAPPS are court actions taken by powerful or wealthy individuals or organisations against ordinary people who seek to express their views and to take part in the decision-making processes which affect their lives. Their effect is meant to "chill" through legal intimidation - to stop the critics and end the debates. A steady growth of SLAPPS has occurred where government and business see their interests being threatened by those who dare to rock the boat. The court case becomes a weapon in a larger political war, tying people up in court rooms, sapping their energy and money, carrying the fear of severe legal sanction. In this way the law is used not to protect a valid legal claim but rather to frighten and silence those who are bold enough to criticize, question and speak out. Looking at various high-profile cases the author considers both the theory and practice of attacks upon free speech in a modern democracy. In the new era of human rights in the United Kingdom the author poses important questions about what the use of such legal actions tells us about the health of our democracy at the turn of the millennium.

Fiona Donson (Administrative Law and Justice, Children's Rights, Children of Prisoners, Penology).
Fiona is a graduate of Leicester University (LLB 1988), Queen's University, Canada (LLM 1989),
King's College London (PhD 1997).
She is currently the Director of the Centre for Criminal Justice and Human Rights in the Law School, UCC.
Fiona's publications include Law and Public Administration in Ireland (with Dr D. O'Donovan, Clarus Press, 2015) and Legal Intimidation: A SLAPP in the Face of Democracy (Free Association Books, 2000).
In addition, she has published articles on protest, human rights, administrative justice, policing and prisons.
Fiona has collaborated on projects funded by the Irish Research Council, the British Government, the Economic and Social Research Council (UK) and the Commission for the Support of Victims of Crime.
Her current research includes work on the rights of children of incarcerated parents,
public inquiries, Oireachtas inquiries, and more generally administrative justice.
Before joining UCC at the end of 2007 Fiona worked as a child rights advocate for a number of years
in Cambodia including developing child rights training for lawyers for UNICEF and running a major child rights project funded by the European Commission.
She has taught at a number of Law Schools in the UK including Leicester and Cardiff.

MEDIA

Solicitors warned about involvement in SLAPPs
28 November 2022
https://www.sra.org.uk/sra/news/press/solicitors-warned-slapps/

Equalising goal: Law Society proposes SLAPP curbs
By Gazette reporter
19 May 2022
https://www.lawgazette.co.uk/law/equalising-goal-law-society-proposes-slapp-curbs/5112543.article

'Textbook SLAPP': Oligarch’s libel lawyers reported to SRA
By Sam Tobin
18 May 2022
https://www.lawgazette.co.uk/news/textbook-slapp-oligarchs-libel-lawyers-reported-to-sra/5112544.article

Judge blasts ‘wasteful’ lawyers who filed 6,000-page bundles
By John Hyde
16 May 2022
https://www.lawgazette.co.uk/news/judge-blasts-wasteful-lawyers-who-filed-6000-page-bundles/5112492.article

Proposed Directive and Recommendation on strategic lawsuits against public participation (SLAPPs)
12/05/2022
https://www.lawsociety.ie/News/News/Stories/european-commission-proposed-directive-and-recommendation-on-strategic-lawsuits-against-public-participation-slapps/

SLAPPs risk tarnishing the reputation of our justice system
By James Cartlidge MP, justice minister
9 May 2022
https://www.lawgazette.co.uk/commentary-and-opinion/slapps-risk-tarnishing-the-reputation-of-our-justice-system/5112418.article

Litigant banned over ‘unjustified’ complaints to regulators
By Sam Tobin
6 May 2022
https://www.lawgazette.co.uk/news/litigant-banned-over-unjustified-complaints-to-regulators/5112419.article

EU plan to enable swift dismissal of SLAPPs
29 Apr 2022
https://www.lawsociety.ie/gazette/top-stories/2022/eu-plan-to-enable-swift-dismissal-of-slapps

Mind the SLAPP
29 April 2022
https://edition.pagesuite.com/html5/reader/production/default.aspx?pubname=&edid=6e51483c-0659-4e5a-a602-4e7c7c23a2b2&pnum=7

Call for urgent reform amid warning of Dublin becoming ‘libel hub’
29 APR 2022
https://www.irishlegal.com/articles/call-for-urgent-reform-of-law-amid-warning-of-dublin-becoming-libel-hub

News focus: SLAPPs row reaches the regulator
By Sam Tobin
29 April 2022
https://www.lawgazette.co.uk/news-focus/news-focus-slapps-row-reaches-the-regulator/5112351.article

Commission proposes law to protect journalists from abusive lawsuits
Mary Carolan
Thu, Apr 28, 2022
https://www.irishtimes.com/news/ireland/irish-news/commission-proposes-law-to-protect-journalists-from-abusive-lawsuits-1.4863516

Defence counsel backs ‘naming and shaming’ oligarch solicitors
By Sam Tobin
26 April 2022
https://www.lawgazette.co.uk/news/defence-counsel-backs-naming-and-shaming-oligarch-solicitors/5112287.article

Pre-action libel letters need ‘more regulation’, peers told
By Sam Tobin
4 April 2022
https://www.lawgazette.co.uk/news/pre-action-libel-letters-need-more-regulation-peers-told/5112092.article

Crackdown on SLAPP suits could include new legal regulations
By Michael Cross, Sam Tobin
17 March 2022
https://www.lawgazette.co.uk/law/crackdown-on-slapp-suits-could-include-new-legal-regulations/5111887.article

SRA SLAPPs back
By Jonathan Goldsmith
7 March 2022
https://www.lawgazette.co.uk/commentary-and-opinion/sra-slapps-back/5111757.article

SRA updates warning on SLAPP misconduct
By Michael Cross
7 March 2022
https://www.lawgazette.co.uk/news/sra-updates-warning-on-slapp-misconduct/5111759.article

Ireland ready to Slapp laws on defamation
Mark Tighe
Sunday February 20 2022,
https://www.thetimes.co.uk/article/ireland-ready-to-slapp-laws-on-defamation-wq70pdvsw

MP calls for windfall tax on libel firms
By Michael Cross
21 January 2022
https://www.lawgazette.co.uk/law/mp-calls-for-windfall-tax-on-libel-firms/5111239.article

News focus: Efforts to curb ‘SLAPPs’ gaining momentum
Journalists, campaigners – and lawyers – are fighting back as the rich and powerful allegedly seek to avoid scrutiny by bogging down critics in financially crippling litigation. New curbs are proposed
By Michael Cross
29 November 2021
https://www.lawgazette.co.uk/news-focus/news-focus-efforts-to-curb-slapps-gaining-momentum/5110740.article

Call for shaming of ‘SLAPP’ solicitors
By Michael Cross
24 November 2021
https://www.lawgazette.co.uk/news/call-for-shaming-of-slapp-solicitors/5110680.article

UK ANTI-SLAPP WG: PROPOSALS FOR PROCEDURAL REFORM
24 November 2021
Judicial Guidance, Civil Procedural Reform, and a UK Anti-SLAPP Law
https://www.lawgazette.co.uk/news/call-for-shaming-of-slapp-solicitors/5110680.article

A Lawsuit A Day Keeps The Activists Away: New Report Finds 355 Lawsuits Filed By Big Business Against Activists
Morgan Simon, Senior Contributor
Investing; I write about money and social justice.
Jul 27, 2021
https://www-forbes-com.cdn.ampproject.org/c/s/www.forbes.com/sites/morgansimon/2021/07/27/a-lawsuit-a-day-keeps-the-activists-away-new-report-finds-355-lawsuits-filed-by-big-business-against-activists/amp/

Call for sanctions against lawyers over 'SLAPP' tactics
By Jemma Slingo
15 June 2021
https://www.lawgazette.co.uk/news/call-for-sanctions-against-lawyers-over-slapp-tactics/5108838.article

Vexatious litigants
Last updated
9 July 2021
https://www.gov.uk/guidance/vexatious-litigants

Halt legal intimidation of reporters, EU demands
08 Jul 2021
https://www.lawsociety.ie/gazette/top-stories/Halt-legal-intimidation-of-reporters-say-EU

EU WHISTLEBLOWERS POORLY PROTECTED
JACK HUNTER
MAY 3, 2021
https://meta.eeb.org/2021/05/03/eu-whistleblowers-poorly-protected/

A SLAPP in the face for free speech
By Jonathan Goldsmith
24 May 2021
https://www.lawgazette.co.uk/commentary-and-opinion/a-slapp-in-the-face-for-free-speech/5108571.article

London, libel and reputation management
The English courts attract those with deep pockets and much to lose
The editorial board
MAY 10 2021
https://www.ft.com/content/e37f3349-479f-42c6-85fe-11b5a29bdee0

EU WHISTLEBLOWERS POORLY PROTECTED
JACK HUNTER
MAY 3, 2021
https://meta.eeb.org/2021/05/03/eu-whistleblowers-poorly-protected/

Have you been affected by anything on this page?

If so, we would like to hear from you.

We have significant experience on these matters and are currently preparing a dossier on SLAPP and related matters. We will be seeking to have those responsible brought to justice.

It is imperative that those who instigate and sponsor SLAPP suits together with related forms of bullying are subject to appropriate punishment.

It is also crucial that any lawyers who are enabling or facilitating SLAPP type suits or who have permitted their office to engage in other forms of related bullying, are brought to justice and held accountable. As legal practitioners they also have a duty to the court and should know better.

It is essential that regulatory authorities update their ethical standards to take account of this particularly ugly form of bullying which is a gross abuse of the legal system; the integrity of which suffers greatly when legal practitioners stoop to such levels.