Another article from our regular legal correspondent Ewan Kennedy.

I was talking to a usually very well informed political friend during the week and found that she hadn’t heard about SLAPPs, so it’s maybe time to put the word out more generally about what has been becoming a specialism for a section of the legal profession and a threat to our freedom of speech.

When I sent back my licence fourteen or so years ago it was already obvious that solicitors were no longer one single profession. They had started to divide into several different types of legal business, with a diminishing number still taking on traditional clients, mainly middle class people doing house sales or making wills and a growing bunch of youngsters going for the big money in massive cross national outfits. The very serious drop in lawyers doing criminal defence work is a serious worry in both Scotland and England, while a lot of the most serious civil damages work is supported by private insurance-backed schemes rather than on legal aid. The result is Heaven help you if you find yourself in trouble and you’re neither poor enough for legal aid nor rich enough to hire a KC! 

One very unwelcome result of this is the arrival on our shores from America of the SLAPP, the Strategic Litigation against Public Participation. The law courts in many Western countries are being used by the very rich and powerful, many (most?) of whom have gained their wealth through means they would prefer the public didn’t know about, to silence those who have been looking too closely. 

We’ve seen an example of this in the last week, with Nadim Zahawi hiring an international law firm, Osborne Clarke, to threaten an activist with a libel case for asking him to come clean about his tax returns. (Zahawi was being interviewed by Laura Kuensberg this morning, but I must have dozed off when she was quizzing him about it). Often we don’t get told when people are silenced; Osborne Clarke had “ordered” the activist not to tell anyone that they were threatening him.

Perhaps the most widely publicised case of a SLAPP recently was the one brought by Arron Banks against Carole Cadwallader, claiming damages for libel in respect of some remarks she made hinting that he might have had Russian connections. What we know about Mr Banks suggests that  he is a very wealthy fellow indeed, whereas his target was a well-known and very active investigative journalist, a career that is more likely to get you shot than rich. 

Instead of suing the media who published his target’s remarks, Ted Talks and the Guardian, he attacked her personally. She successfully defended herself, but at enormous personal and emotional cost and huge expenditure, funded by outraged citizens who rallied to help at a time when everyone is under strain.

And possibly the earliest case of a SLAPP in the UK was the McLibel case over the hamburger chain, which launched a young barrister called Keir Starmer into public life.

These cases illustrate the prime feature of a SLAPP; there is usually a huge imbalance of financial muscle. In addition to this, classic features are:

The case is brought by an individual or corporation with something to hide.

As it says on the tin, the target is public participation in the exposure of wrongdoing.

The remedy is usually disproportionate and the costs enormous.

There is often no basis whatsoever for the case, or perhaps the case is mainly, but not entirely, unfounded. Often there is no damage of the sort a court will regard as appropriate for compensation; by that I mean reputational damage caused by the disclosure of criminal or some other gross misconduct. In Mr Banks’ case his links with various Russian individuals were already well known and indeed had been publicised by himself.

SLAPPs first came to public attention in the late 1980s in the United States, famously the land of the free, including the Constitutional right to freedom of speech. Judges were recognising court cases that breached this right, with an early case going to the New York Supreme Court. The ruling was based not on any statute, but on the common law power of judges to throw out cases they consider vexatious. 

Following the New York case, legislators there and elsewhere got interested. Currently there is legislation in thirty one States in America, plus Quebec, British Columbia and Ontario in Canada, plus the Australian Capital Territory.

In other jurisdictions it’s still down to judges deeming cases to be vexatious. This happened in the South African case of Mineral Sands, where attorneys got sued. In the Republic of Ireland a decision is awaited in a major case re a Dublin housing development, where a property developer is suing.

The advantage of legislation, apart from respecting democratic lawmaking, is to have clear rules giving guidance for judges to follow. The European Commission has recognised this  and has a team of experts working on a draft Directive that will basically define what is a SLAPP and set out detailed rules. 

Because of another “Brexit benefit” the Scottish and English legal systems will have to rely on the common law rules about vexatious litigations. Unfortunately these have mainly been used here by powerful people and even by the State to silence activists, Robbie the Pict being an example 

Finally, in case you’re wondering if a SLAPP could happen here, I can disclose that at least one is already underway, with all the classic features. The exact details are currently under a legal embargo, but if Iain allows me another article they will be published in due course. 


As always I am grateful to Ewan. This time he is providing early warning of legal changes that threaten our freedom of speech rights. There is no doubt that our freedoms are under challenge in a great many ways these days in Scotland, not least with jury less trials and far too close relationships between the legal system and the Scottish Government. I look forward to Ewan’s future article that will update the position.

I am, as always

Yours for Scotland


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18 thoughts on “SLAPPs

  1. Hi Lynn,

    The article below is not news to you but at least some attempts are being made to publicise the issue here.

    ( I see that Pete Wishart has resigned from the SNP front bench team at Westminster but I gave up on him a few years ago when he announced that he planned to settlle into that Place by seeking to be considered as a candidate for Speaker of the House of Commons. He really did not see any problem with such an aspiration.

    I reckon that no elected SNP member to any public or paid party office should hold that office for more then two terms or ten years as that just rewards failure in achieving our primary goal of independence.

    Any such policy, if approved would allow an SNP member to serve as a SPAD for ten years, a local councillor for ten, and also as an MSP then MP for ten years ( all those periods mixed if the member so wished -after which they could use their combined forty years worth of pension entitlements to pay for their voluntary service helping out in the local offices of their councillors, MSPs and MPs as penance for their political failure.

    I regret to say that I have met young SNP members who reckon that there are careers to be had in the SNP. That’s part of the reason why I think that the SNP is the most useless party of national liberation in the history of the British Empire – yet I still remain a ( much disappointed) member.)

    I reckon that Mick Lynch of the RMT is the most effective politician in the U.K. just now.

    When the SNP has elected members like him we’ll be cooking on gas.

    I’m delighted to have found, via The Meadows Share, a couple of folk who need a lift, and are willing to share the cost of diesel, to Portree on the 22nd December. We have to do politics at the lowest possible level too.

    Another recent, low level, discovery on my part was, whilst accepting that I’m a great procrastinator I still have some standards – low may they be. My old beech wood lavatory seat has looked faded and sad for the past thirty years and its chrome hinges were never the brass ones which I would have preferred. Yesterday I could thole the crusty looking hinges no longer so I took some steel wool to them and within minutes I discovered that they had been brass hinges all along so I Brassoed them. A bit more rubbing of the beech wood and a few coats of Danish Oil have transformed my lavvy seat. With a wee bit more effort we shall liberate our country.

    With best wishes from,

    Yours aye,

    Stuart xxxO

    Sent from my iPad


    Liked by 7 people

    1. In regard to a colonial administration: “the notion of the party is a notion imported from the mother country” – and, much as we see with the SNP – “the fetish of organization will often take precedence over a reasoned study of colonial society” (Frantz Fanon).

      Liked by 6 people

    One of my fellow activists, unnamed but mentioned in this article, was the subject of a SLAPP, in the early 90s, along with a major environmental organisation and a broadcasting company. It hung over them for years and was never brought to court. It was just intimidation, so activists would never be sure if they could be targeted by companies with deep pockets, dirty dealings and unscrupulous executives. We knew then about SLAPPS in the US, but always had to watch what we said and wrote. I received a lawyer’s letter from the company I was campaigning against, but said to my group at the time that, if there had been anything that they could realistically have sued us for, they would have done so. I’d have been able to defend an action but, in Scotland, the legal profession make it very difficult for someone to represent themselves in court and the MacKenzies Friends you get in the English system are not permitted in Scotland – nor are class actions. MFs are basically people who represent others in court, but are not legally qualified to do so. There have been recent news articles about the growth of SLAPPS in the UK, so Ewan’s article is timely, as they seem to be becoming a routine feature of suppressing investigation of all sorts of malfeasance.

    Liked by 15 people

  3. Interesting article and my first reaction was “….it has always been thus”.
    Money and Position have always created an advantage. It is the “legal version” of the TransCult operation. The Cult target anyone who “disobeys” their rules by an organised campaign against individuals, to destroy the career, their reputation, to deplatform them, to hound them into silence. The intent is to send a message to others “You are next”. It is why so many are reluctant to speak at all on the subject.
    Another example is the selective application of a legal ruling as in the Alex Salmond case. A Blogger ends op in jail for publishing material already in the MSM. In fact journalists of the MSM had gone much further and directly identified one of the witnesses.

    Slapp and the current TransCult operation have a common root, “The process is the punishment”.

    It is not just about the powerful with money. When the Police and Courts take action against a Women for putting up a sticker in support of Women’s Rights we have lost perspective.
    We are being silenced by Wealth AND aggressive organisations.
    Being able to afford a legal defence is one part of the assault on free speech but career threats and personal life attacks is also scary.

    How many Women have had their lives ruined in the last few years even after a successful court case victory.

    Remember…..” The Process is the Punishment”. When the new Hate Law comes in, that is all that is needed to silence people. They do not need to “Win” the case. They only need to put you into the meat grinder for several months to send a signal to others.

    If the TransCult tactics are successful then other groups will adopt it. I remember decades ago watching a foreman on a site with a large workforce ( shall we say, very strong characters)’. At the end of a work break he did not instruct the group to go back to work. He walked up to one person and said “back to work”. He broke the pack strength by putting an individual on the firing line.
    “First they came for the communists and I did not speak out….”

    Liked by 8 people

    1. Full quote by Pastor Martin Niemöller for those not familiar with it…

      First they came for the Communists
      And I did not speak out
      Because I was not a Communist
      Then they came for the Socialists
      And I did not speak out
      Because I was not a Socialist
      Then they came for the trade unionists
      And I did not speak out
      Because I was not a trade unionist
      Then they came for the Jews
      And I did not speak out
      Because I was not a Jew
      Then they came for me
      And there was no one left
      To speak out for me

      They have come for Women and too many are being silent

      Liked by 11 people

      1. Aye Clootie, many of us will have experienced similar scenarios, where the established powers that be (and their agents) isolate that which they perceive to be a threat by identifying the weak link.

        All who are in support of Women and young girls in their fight to retain safe spaces must adopt that same principle. It may seem a contradiction in terms but the weakest link in the organisation facilitating this attack on women just happens to be the ringleader in the form of Sturgeon. She already is showing weakness.

        Isolate Sturgeon make her the “individual in the firing line” and let HER ask; who now will speak for me”?

        Liked by 5 people

      2. It takes great bravery to stand against someone with a gun, club, whip, electrodes etc.
        Right up until the end Jews held on to what they were told by Nazi personnel, just routine health check etc, who murdered them.
        It is normal to cling to hope, not to believe the worst of your fellow humans.
        What precedes all this in the propaganda war is the softening up. When the full «thing» is unleashed it is less of a shock, providing the «thing» is not coming after you.
        We Assyrians/Syriacs are all too familiar with the «thing».
        Paradoxically it has made us rather tough.
        Naïve we are not.

        Liked by 6 people

    2. Anent the reaction of workers on the site described above I mind the reaction of the local workforce of “Roy of Stirling” on the building site by the Bypass at Beith, Ayrshire on which I had a ( late sixties) school summer holiday job as a general labourer to the non arrival of our cash pay packets by 15:45 one Friday afternoon at the hut in which we took our breaks and which doubled as the foreman’s office with a landline telephone connection.

      The 4WD fore-end loader driver placed a pallet of breeze blocks right outside the door of the hut and continued to stack them all the way round the hut. We then waited for a couple of hours for the car which brought our cash wages in their wee brown envelopes hot from the company’s head office.

      Liked by 4 people

  4. Zahawi, of YouGov fame, is a Baghdad born ethnic Kurd and has used his ethnicity to good networking effect. He is a protégé of someone called Jeffrey Archer who set up a Kurdish aid charity and who has a criminal record.
    He will never have done anything wrong as the system is very understanding.
    I suspect he is of the fix it by sending in the army mindset.

    Liked by 7 people

  5. “These cases illustrate the prime feature of a SLAPP; there is usually a huge imbalance of financial muscle. ”

    That’s been the case in Scotland and the rest of the UK for years now, think of the fund raising Martin Keating had to do or the Orkney folk who took proven liar Allistair Carmichael to court.

    They say that everyone is entitled to justice, if wronged, however it’s becoming increasingly clear that obtaining that justice often equates to how big your bank book is.

    Liked by 6 people

  6. Freedom to express your opinion without fear of litigation does seem a basic right of a free people. How about a creating public-funded litigation protection fund? Crowdfunded – Ewen?

    CLIPE – Community Litigation Protection Entity – we are in the thousands, the wealthy in the hundreds.
    10:1 are favourable odds. and as the rich love money – why else do they have so much? – so they would be risk averse to a multitude- funded entity challenging their wealth-entitled power to litigate “at a whim”.

    Of course checks and balances against ill-conceived outbursts would need to be addressed, and monitored, to determine support,or not a situation.

    Liked by 2 people

  7. The law is being used as a tool to subvert democracy , justice and the truth. In UK. OK everthing is hidden behind the smoking mirrors of a twisted establishment who want full control of the media, courts and your finance . They want you to have nothing and for them to own everything.
    Our politicians unfortunately are in their pockets. Thousands given to MPs by the rich and corporations to lobby for the erosion and removal our rights.The right to strike the right to protest the right for self determination People in UK,Ok are trapped in the recreation of Dickens novel huddled in one room trying to get some cheer and warmth. Prehaps we should turn off the heating in the Westminster parliament to show our colonial masters what it is really like to live in their horrible delusion country.
    Sturgeon has the key to get us out of this nightmare one more mandate is unacceptable. Do not use a Pebicsite election as a mandate use it to leave and dissolve the Union.

    Liked by 4 people

  8. Meanwhile today, 9th December, the Westminster Government have published their ‘Edinburgh(?) Reforms’ which will make it easier for rich people to make more money and hide it away in off-shore accounts.
    This should not be named after Edinburgh but called something like the Singapore-on-Thames Financial De-Ristrictions to help crooks get richer’

    Liked by 4 people

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