We should begin by saying that defamation is a very complex area of law and it is best to seek advice if you think you have been subjected to a SLAPP under defamation law. However, we have set out below some of the basic principles of defamation law.

Often (although not always), SLAPP cases are initiated under the guise of defamation. The reason for this is multi-faceted, but in a report from The Foreign Policy Centre and ARTICLE 19, the UK is seen as being attractive for defamation claims for a number of reasons:

The enduring challenges for members of the media defending themselves against libel cases include the high costs involved, the burden of proof, linked to a single legal meaning (now decided by the judge), and the lengthy periods of time taken for legal proceedings to come to fruition. All of these aspects continued to make England an ‘ideal’ jurisdiction for claimants, perpetuating the phenomenon of ‘libel tourism’.

There is a relatively low threshold for a claimant to start a claim. To bring a claim for defamation in England and Wales, a claimant must satisfy four elements: there must be:

1. a defamatory statement 
2. published – the defamatory words must be published to a third party – this includes on social media. 
3. about them – the statement must clearly refer to the claimant. Would those acquainted with the complainant reasonably believe they were the person referred to? 
4. which causes or is likely to cause serious harm to their reputation within England and Wales – the statement must have caused ‘serious’ harm to the complainant’s reputation. What would ‘right thinking’ members of society think about the meaning of the words?

The Defamation Act 2013 is the key piece of defamation legislation. Pursuant to section 1(1) claimants are required to prove that the defamatory material has caused, or is likely to cause, serious harm to their reputation. For bodies that trade for profit, the serious harm requirement is qualified by section 1(2), in that to meet the serious harm threshold claimant’s need to demonstrate actual or likely serious financial loss. It is also important to note the repetition rule which is if you repeat a defamatory statement, through reposting or republishing, for example, then you could also be sued for defamation too. A claimant has 12 months from the date of the first publication to bring a claim. 

The terms ‘libel’ and ‘slander’ are also often used within defamation claims. Libel is a statement that is written or any other permanent form (e.g. radio bulletin, TV package) that affects a person’s reputation. Forms of libel ate text, social media posts, broadcasts, images, etc. Slander is a defamatory statement in a spoken form with no permanent records. 

When it comes to serious harm, each case is judged on its individual merits and so there is no set definition on what ‘serious harm’ looks like, but previous judgments have emphasised that numerous factors are considered, such as how widely the information has been disseminated and the fact that there is evidence that the statement has caused, or is likely to cause, harm.

Bogle and Lindsay (2024) summarised how serious harm has developed since the case of Lachaux v Independent Print Ltd. [2019] UKSC 27, [2020] AC 612. In particular, they examined the judgment of Turley v Unite the Union [2019] EWHC 3457 (QB) where Nicklin J summarised what was decided with regard to serious harm and came to the conclusion that there are six things we can learn with regard to the serious harm test:

1. 1. ‘The test requires more than relying on the mere tendency of a defamatory statement to cause damage. ‘To cause’ harm means considering the consequences of the publication and not, importantly, the mere publication itself.
   2. Section 1 of the 2013 Act requires the demonstration of facts that speak to the material impact of the statement complained of.
   3. Serious harm can be demonstrated by a combination of meaning; the subject’s position; the context; and the inherent probabilities.
   4. A grave allegation in of itself does not necessarily amount to serious harm: there may be no serious harm if such an allegation is circulated around a small number of people, none of whom believe it, or where there is no reputation to be protected.
   5. Rarely will the task be one of precision: it can only be done on what is brought before the court.
   6. The potential impact upon persons the claimant does not presently know, whom they may encounter in the future, may be considered.’ (p.421)

There are defences available for defamation under the Defamation Act 2013. These defences include: truth; honest opinion; and publication on a matter of public interest. You can read more about the defences available by clicking here.

We should begin by saying that privacy is a very complex area of law and it is best to seek advice if you think you have been subjected to a SLAPP under privacy law. However, we have set out below some of the basic principles of privacy law.

Publishing private personal details about a living individual can give rise to legal issues through the law of misuse of private information. Private information covers a range of personal information that might be considered private, such as internal family matters information about health or details of sex life or relationships. The Human Rights Act 1998 incorporated the European Convention on Human Rights (ECHR) into law in 2000 and within the ECHR there is Article 8, which concerns a right to private life. There is also Article 10, which concerns a right to freedom of expression. In cases where these two rights are engaged, there is a two-stage test:

1. Does the claimant have a reasonable expectation of privacy in the information that is to be published; this might include considering whether the person is a public figure; if so
2. Does the right to freedom of expression outweigh the right to privacy (see Axel Springer AG v Germany No. 39954/08). In Mosley v News Group Newspapers Ltd (No.3) [2008] EWHC 1777 (QB) the Court said: ‘the judge will often have to ask whether the intrusion, or perhaps the degree of the intrusion, into the claimant’s privacy, was proportionate to the public interest supposedly being served by it’ [14].

When it comes to a reasonable expectation of privacy, there are guidelines on this from press regulators which can be found here:

• Independent Monitor for the Press (Impress) Standards Code – Privacy: Clause 7
• Independent Press Standards Organisation (IPSO) Editors’ Code of Practice – Privacy: Clause 2 
• The Office for Communications (Ofcom) Broadcasting Code – Privacy: Section 8

As the codes emphasise, there are numerous factors to be cosnidered when discussing if someone had a reasonable expectation of privacy and this has also been noticed by the Court too:

As we see it, the question whether there is a reasonable expectation of privacy is a broad one, which takes account of all the circumstances of the case. They include the attributes of the claimant, the nature of the activity in which the claimant was engaged, the place at which it was happening, the nature and purpose of the intrusion, the absence of consent and whether it was known or could be inferred, the effect on the claimant and the circumstances in which and the purpose for which the information came into the hands of the publishers (Murray v Express Newspapers plc [2008] EWCA Civ 446 [36]). 

It is impossible to have concrete guidelines on when an individual is entitled to a reasonable expectation of privacy as each case will depends on its individual merits. The same is true for the second stage of the test where the public interest is discussed. Again, there is no set definition of the public interest as each case is judged on its individual merits. Some guidance is provided within regulators’ Codes of Conduct and the National Union of Journalists has also provided some examples of what is included within the public interest:

1. The public interest includes:

a. Detecting of expsoing crime or a serious misdemeanour;

b. Protecting public health and safety;

c. Preventing the public from being misled by some statement or action of an individual or organisation;

d. Exposing misuse of public funds or other forms of corruption by public bodies;

e. Revealing potential conflicts of interest by those in positions of power and influence;

f. Exposing corporate greed;

g. Exposing hypocritical behaviour by those holding high office.

They also state that there is a public interest in the freedom of expression itself and note that when it comes to cases involving children, ‘journalists must demonstrate an exceptional public interest to over-ride the normally paramount interests of the child’.

There is a defence of consent – if it can be shown that the individual was made aware the information about them was going to be published and expressly consented. Otherwise, the only real defence is that, when the second stage of the balancing act is conducted, the public interest falls in favour of publication. Ultimately, it is a decision for the court as to whether the public interest in publishing outweighs the privacy rights of the individual, but the courts in England and Wales have indicated that they will give full weight to editorial knowledge and discretion.

The Courts have also stated that there is no solid definition of the public interest but have recognised that some types of speech might be given more protection than others as they are more likely to be considered to be in the public interest:

There are undoubtedly different types of speech, just as there are different types of private information, some of which are more deserving of protection in a democratic society than others. Top of the list is political speech. The free exchange of information and ideas on matters relevant to the organisation of the economic, social and political life of the country is crucial to any democracy. Without this, it can scarcely be called a democracy at all. This includes revealing information about public figures, especially those in elective office, which would otherwise be private but is relevant to their participation in public life. Intellectual and educational speech and expression are also important in a democracy, not least because they enable the development of individuals’ potential to play a full part in society and in our democratic life. Artisitic speech and expression is important for similar reasons in fostering both individual orginality and creativity and the free-thinking and dynamic society we so much value. No doubt there are other kinds of spech and expression for which similar claims can be made (Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22 [148]) 

We should begin by saying that data protection is a very complext area of law and it is best to seek advice if you think you have been subjected to a SLAPP under data protection law. However, we have set out below some of the basic principles of data protection law.

Publishing personal details about a living individual, such as their name or address or a picture or other personal details about them, especially where that information is sensitive personal information (for example, health, sexuality, political views etc.) even if those details are already publicly available, can give rise to legal issues under data protection law. The key pieces of legislation are the Data Protection Act 2018 and the UK General Data Protection Regulation (UK GDPR).

Individuals have a ‘right’ not to have their personal information misused, unless the information or use is trivial. Misuse in data protection terms focuses on how personal data is ‘processed’ – i.e. collected, retained and used. There is a ‘journalistic exemption’ for using personal data, which effectively provides a public interest defence; what is key is being able to show that, before publishing, there was a ‘reasonable editorial belief’ that it was in the public interest to publish. The Information Commissioner’s Office has set out a code of practice for data protection and journalism. They state that to apply for the exemption you must:

• use personal information for a journalistic purpose;
• act with a view to the publication of journalistic material; and
• reasonably believe both that:
  • publication would be in the public interest; and
  • complying with a specific requirement would be incompatible with your journalistic purpose.

The Information Commissioner’s Office also states that in order for the exemption to apply: ‘you reasonably believe that the publication of the material would be in the public interest, taking into account the special importance of the general public interest in freedom of expression, any specific public interest in the public in the particular subject, and the potential to harm indvidual’. They also note that you must, if relevant, regard the BBC Editorial Guidelines, Ofcom Broadcasting Code or Editors’ Code of Practice. Both pieces of legisaltion concerning data protection acknowlege that there are exemptions for journalism. Article 85 of the UK GDPR states that the right to protection of personal data has to be reconciled with the right to freedom of expression, including for journalistic purposes. Part 5, Schedule II of the Data Protection Act 2018 set out the exemptions for journalistic purposes.

In a world of online media, stories are often accessible from across the globe. While this enhances the reader base, it also enhances certain legal risks. Where a publication is available in multiple locations, the possibility of cross-border litigation arises. 

For example, let’s imagine that a French freelance journalist published a story concerning corruption in Honduras. The story is published on the website of a US based media outlet and is accessible in multiple locations across Europe, North and South America. The economically and politically powerful subject of the story may seek to silence the journalist by threatening legal action against the journalist and/or the media outlet, claiming that their reputation has been harmed wherever the story was read. This example raises the question of (a) where the journalist can be sued (b) what law will govern the dispute and (c) where can any judgment be enforced. These questions will be governed by private international law. 

While private international law varies with jurisdiction, typically, claims relating to tortious wrongdoing (e.g., defamation) can be raised in the place where the event giving rise to the harm occurred, where the harm was felt, or where the defendant is domiciled. As such, this opens up the opportunity for the claimant to take proceedings anywhere that they have a reputational interest that could have been harmed by the online publication. In addition, the law governing a tort claim is typically the law of the place where the damage occurred. This allows the claimant to “shop” around for the court that will apply the law that is most favourable to their cause; a practice termed “forum shopping”. As such, a journalist may find themselves defending legal actions in multiple jurisdictions, applying different laws. Defending foreign proceedings is notoriously costly, both financially and emotionally. 

In recognition of the increased cost and complexity associated with defending third country proceedings, Directive 2024/1069 and Recommendation CM/Rec(2024)2 provide for grounds to refuse recognition and enforcement of judgments rendered in third country SLAPPs and a new special ground of jurisdiction for Member State courts to hear claims for damages arising out of third country SLAPPs. 

The UK does not have private international law rules that are specifically designed to deter or remedy SLAPPs. In England and Wales, the courts have civil jurisdiction over a defendant that is present in England. In addition, in tort claims, a claimant can apply to serve a defendant that is present in England. In addition, in tort claims, a claimant can apply to serve a defendant out of the United Kingdom if the damage was sustained in England and Wales, the damage resulted from an act committed in England and Wales, or the claim is governed by the law of England and Wales.(Civil Procedure Rules, Practice Direction 6B).

In Scotland, Schedule 8 of the Civil Jurisdiction and Judgment Act 1982 sets out the rules on international civil jurisdiction. In matters relating to tort, a person may be sued in the courts for the place where they are domiciled or in the place where the harmful event occurred or may occur.

In addition, and of interest to journalists, Section 9 of the Defamation Act 2013 introduced a requirement that the court must be satisfied that “of all the places in which the statement complained of has been published, England and Wales is clearly the most appropriate place in which to bring an action in respect of the statement.” A similar provision was introduced in Scotland by the Defamation and Malicious Publication (Scotland) Act 2021. This requirement lessens the risk of forum shopping, however, may still give rise to lengthy jurisdictional arguments.

While this section provides a brief snapshot of UK private international law rules in matters relating to tort, journalists must be aware that, where a story is published online, they could potentially face legal action in any country where the story was published and the claimant has a legal interest capable of being damaged. Each country will apply their own private international law rules to determine the issue of jurisdiction and applicable law, and private international law rules vary depending on the nature of the claim (e.g. tort or contract).