Protecting yourself from legal action
When it comes to protecting yourself against a SLAPP action, there are several things that you can do to make sure that you are giving yourself the best possible chance of having a successful defence. The following slides will go through the ‘best practices’ for how to protect yourself against SLAPP actions. Even if you do all of these things, there is no guarantee that you won’t be on the receiving end of a legal letter, but these are the good practices that can make sure that you are well prepared if a letter does ever come.
- 1. Notekeeping
- 2. Record the public interest
- 3. Right of reply
- 4. Seek Advice
- 5. Consider insurance and/or regulation
Making sure you keep notes and any minutes from meetings is imperative. These notes are important as they provide you with a record of what has happened and who has said what to you. Record the information that you’ve been given, think about how good the information is, and also make sure that you ahve followed up on things, whether this is gaining further information or following up on something that someone might have said. When doing all of this, also think about the public interest and why the story you are pursuing, the information you have gathered, and the people you are talking to are in the public interest.
With regard to the public interest, this is something that should be considered at every point of the developing story. Constantly try to have two or three reasons why the story is in the public interest and write these down so that you have them recorded. As mentioned prior, there is no definitive list of the public interest, but the courts have recognised the importance of notekeeping and documenting the public interest as well:
Perhaps more importantly, a requirement that journalists and those in professional publishing organisations should be able to demonstrate, not only that they reasonably believed that publication would be in the public interest, but also how and with whom this was established at the time, it is not an unworkable, unreasonable, or unachievable objective set by lawyers or the Court (Lachaux v Evening Standard [2021] EWHC 1797 (QB) [120]).
As mentioned earlier, defamation is commonly the vehicle used to bring about SLAPP claims and the section 4 defence focuses on public interest and Nicklin J laid out that while notekeeping does not guarantee success of the defence, it can help the court see their reasoning:
Of course, the Court has no power to require a journalist – or any other professional – to maintain records. But, as the burden of establishing a public interest defence under s.4 Defamation Act 2013 lies upon the defendant, a defendant seeking to prove that s/he reasonably believed that publishing the statement complained of was in the public interest is likely to find that the prospects of success are enhanced by being able to produce contemporaneous records of their decision(s) taken…Defendants seeking to rely upon such a belief – whether in support of a s.4 defence or otherwise – would be well advised to ensure that they are able to demonstrate that they reasonably believed that publication would be in the public interest and how, and with whom, that was established at the time. (Lachaux v Evening Standard [2021] EWHC 1797 (QB) [122-123]).
Once you have your facts and are certain that they are in the public interest then providing a right of reply is important as it protects you editorially. It is considered good practice and good faith journalism to provide the subject of an article with the right of reply. If a reply is received then it is also good practice to publish a summary of the response that has been received. While there is nothing in legislation forcing you to do this, and in some cases it might not be beneficial if it could, for example, endanger sources, it does provide an added layer of protection and editorial codes of conduct also state that it should be done.
There might be times when providing a right of reply might not be in the best interests because of legal reasons or other reasons, such as endangering sources, but if possible then legal advice should be sought to discuss this. Additionally, if a right of reply is not given then the reasons for this decision should be documented in a contemporaneous note. The Courts have also recognised the important of a right of reply, stating that it is not a requirement, but note that it should be considered:
A failure to invite comment from the claimant prior to publication will no doubt always at least be the subject of consideration under subsection (1)(b) and may contribute to, perhaps even form the basis of, a conclusion that the defendant has not established that element of the defence. But it is, with respect, too strong to describe the prior invitation to comment as a “requirement”. (Serafin v Malkiewicz and others [2020] UKSC 23 [76]).
If you are publishing something that is likely to be disputed or considered controversial then, if possible, ask a lawyer to look over it. They will be best placed to know if the topic you are writing about is likely to face legal action and they can advise the best course of action in order for you to be able to protect yourself. If you don’t have access to a lawyer, then there are other resources available. For example, the Coalition Against SLAPPs in Europe (CASE) provide resources on how to identify and prevent a SLAPP.
Signing up to a regulator doesn’t guarantee protection, but it can provide an additional layer towards protecting yourself. For example, the regulator Impress offers Alternative Dispute Resolution (ADR) which is recognised by the court as a way to solve disputes without going through the legal system, which is often costly and time consuming. Having insurance is also another thing that you can do to protect yourself – in particular, you might want to consider personal liability cover and depending on the type of cover, it could help you if you ever do find yourself facing legal action.