The proposed legislation will legally define the characteristics of a SLAPP for the first time, though this definition is limited to economic crime for now. The proposed definition of an economic crime SLAPP is a claim in which:
- the claimant’s behaviour in relation to the matters complained of in the claim has, or is intended to have, the effect of restraining the defendant’s exercise of the right to freedom of speech;
- the information that is or would be disclosed by the exercise of that right has to do with economic crime;
- that disclosure is or would be made for a purpose related to the public interest in combating economic crime; and
- any of the behaviour of the claimant in relation to the matters complained of in the claim is intended to cause the defendant—
- harassment, alarm or distress;
- expense; or
- any other harm or inconvenience;
beyond that ordinarily encountered in the course of properly conducted litigation.
Should the bill pass in its present form, the main battleground is likely to be the final limb of this test. The claimant’s behaviour must be “intended” to cause the defendant harassment, alarm or distress; expense; or any other harm of inconvenience, beyond that ordinarily encountered in the course of properly conducted litigation.
This seems to be a test based on the claimant’s subjective motivation and by reference to conduct deviating from ordinary behaviour in the context of properly conducted litigation (which itself might mean different things to different people). Steps taken with the intention of protecting the claimant’s reputation shouldn’t therefore fall within this definition. However, the very broad wording regarding “any other harm or inconvenience” will no doubt enable defendants to argue that a variety of actions qualify as an economic SLAPP.
The government has previously defined a SLAPP as “an abuse of the legal process” but that wording is missing from the current definition. The bar seems to have been lowered when compared with the prior definition, which referred to a SLAPP as a claim “where the primary objective is to harass, intimidate and financially and psychologically exhaust one’s opponent via improper means”.
Although the proposed amendment is limited to economic crime, the government has hinted in its press release that there may be more to come: “This amendment is the first step in cracking down on SLAPPs used to limit freedom of speech. The government remains committed to tackling all forms of this nefarious practice and will set out further legislation beyond economic crime when parliamentary time allows.”