SLAPPed

Sunday National, 30th June 2024.

For any publisher, receiving a lawyer’s letter is a bracing experience. Where lawyers tread, fee notes are sure to follow. Litigation means jeopardy. And under the law as it stands, even writing a simple factual story isn’t always legally safe.

For news outlets, the risks of getting it wrong are high. The dangers are both reputational and financial. Publish an unfounded story? And you can find yourself winning the Tartan Bollocks Award, fielding complaints to the Independent Press Standards Organisation – or paying out damages.

Winning a civil case can be ruinously expensive in this country, but it isn’t a patch on losing one. The ordinary principle – expenses follow success – means the losing side in any case normally finds itself on the hook not only for the court fees and their own lawyers’ costs, but also the legal expenses the other side have ratchetted up. Throw in the bills of a KC or two, and tens of thousands of pounds can fly out of your bank account in no time.

These days, no newspaper is in the position to say ‘publish and be damned’ to every story. The high price of fearlessness is one consequence of the precariousness of the UK media market. Money talks.

Legal uncertainty adds another layer of difficulty for publishers on the receiving end of a solicitors’ Exocet. Law isn’t a big book of rules. It’s often characterised by uncertainty, open-textured language, and room for interpretation. This uncertainty weighs heavily in the risk balance too – often against publishing.

Lawyers can help enforce important social interests – discouraging slander, protecting privacy, upholding the integrity of the justice process. But they also have the power to silence legitimate and responsible reporting if misapplied.

Campaigners call interventions like this SLAPPs. This is the nifty acronym. The long version is: strategic lawsuits against public participation.

SLAPPS are increasingly on the agenda across Europe, as governments recognise that people and businesses with deep pockets and thin skins can use legal resources to muzzle not only their critics – but also news outlets reporting facts about them which they’d rather not see sunlight.

Basic rights are engaged here. Freedom of expression is about the ability to share your opinions, but concerns more than that. It’s also about the ability for the media – and anyone else – to freely share and receive accurate information about what is going on in the world.

The European Court of Human Rights has consistently made clear that political speech, in particular, attracts a heightened level of protection, given its existential importance in a democracy.

Defamation law used to be the old weapon of choice for people who wanted to keep their names out of the papers. But privacy rights and data protection have put new tools in their hands.

Take one practical example. Should the public have the right to know, and should the media be able freely to report, that an individual is the subject of a police investigation? Or that they’ve been arrested and questioned, even if they haven’t been charged?

The BBC’s fateful decision to despatch a helicopter to film police raids on Cliff Richards’ home has set in train a series of court decisions, which have significantly expanded the reach of the right to privacy and diminished press freedom.

In a recent case involving Bloomberg and a – still unidentified and unidentifiable – high-street mogul investigated for potential fraud, the UK Supreme Court decided that people have a ‘reasonable expectation of privacy’ unless and until they are charged by the police with committing a criminal offence. Breach this – even by reporting the facts about their case in a responsible way – and you risk being pursued for damages. You don’t need to suggest or imply they’re guilty. Privacy law now makes responsibly publishing the facts actionable in some circumstances. Accuracy is no defence.

But as anyone with even half an eye on the media in the last few months knows, this principle is applied in a staggeringly inconsistently. Some uncharged suspects are immediately named in the national press – while other people interviewed by police under caution continue to occupy prominent roles in public life, leaving the rest of us none-the-wiser. Privacy isn’t an absolute right. It can be overridden by public interest considerations, which are normally all the more powerful when politics is involved, but publishers are taking a chance in going public.

Publishing during election time raises its own legal challenges. The UK parliament have passed a succession of Representation of the People Act over the years. While the first wave did basic work of extending the franchise and emancipating women, later iterations set out a dizzying array of crimes and corrupt practices which apply only during election time.

And here’s the rub. Almost nobody knows very much about these restrictions, because some of them are almost never applied in practice. The UK’s Law Commissions have highlighted what a mess this network of restrictions has now become, but given the chaotic last few years in British politics, reform has not been a priority.