By Mohamed Amersi, Founder of The Amersi Foundation
I wholeheartedly support the right to freedom of expression, which is enshrined in our democracy and rightly protected by the Human Rights Act 1998, which also sets out the responsibilities and duties that flow from it for those who seek to exercise this right.
However, my own experience has convinced me that too often so-called “free speech” rights are invoked as a cover to allow the publication of false and defamatory claims. It is this behavior, not “strategic lawsuits”, that poses a more imminent and serious threat to our democracy, especially in the digital age. It is not only the individual but society itself that loses when false and defamatory statements can be made about an individual who has no means of exonerating himself.
This article is based on my submission to the Department of Justice’s open consultation on strategic lawsuits against public participation, launched by the Deputy Prime Minister in March. I want to give my views on SLAPPs, not least because I have been wrongly accused, by Members of Parliament and others elsewhere, of initiating a SLAPP when nothing could be further from the truth.
In late December 2020 and early January 2021, an organization and individual, whom I have sued for defamation, released a series of documents to a number of influential people, including senior politicians, diplomats and national security officials, which contained highly defamatory and egregious statements. and false allegations about me. I am challenging this in court to uphold my reputation.
Before initiating a defamation suit, I felt it was essential to know the full extent and complete list of recipients of defamatory materials. To do this, I issued a subject access request (SAR) against the defendants followed by a procedure under data protection law because the response to the SAR was, in the opinion of my lawyers, inadequate. Following further disclosure by the defendants, it has become clear to me that the costs of a lawsuit to seek relief under data protection law would outweigh any other benefit that would be derived from the litigation and the parties may have compromised the pre-trial proceedings. each party bearing its own costs.
At any time, to resolve my issue amicably, I have been open to a settlement that includes an admission, apology, recantation, and cease and desist. I did not ask for the payment of damages nor the reimbursement of my legal costs.
A reverse SLAPP
Despite the fact that the case was to be tried in court, several MPs took it upon themselves, under the protection of parliamentary privilege, to repeat some of these false allegations and other serious ones during a debate in the House on the SLAPP in January 2022.
I have written to these Members of Parliament to explain to them the real position. In my opinion, this was not a “debate”, but a one-sided, and I believe carefully choreographed, defamation of me. I had no right to defend myself in Parliament and I find myself being unfairly accused of bringing a SLAPP when I am only defending my reputation.
I find it remarkable that some members have ignored the sub judice rule and, under the guise of parliamentary privilege, have made ill-informed judgments about ongoing legal proceedings. I feel that I am being unjustly judged by both the court of public opinion and the court of Westminster, when in fact the true and sole arbiter of this dispute has not yet had the opportunity to listen to my testimony or that of the defendants.
Accordingly, I coined another definition of SLAPP: Strategic Limitation of Abuse of Parliamentary Privilege.
Definition of SLAPP
When journalists are sued for defamation, they do not automatically become victim-gagers. If they publish false information (of course, the vast majority do not), or do not act ethically or responsibly, the law should insist on their responsibility.
In my experience, here are some of the criteria that a SLAPP victim must meet before they can avail of the support that comes with being subjected to a proper SLAPP, including crowdfunding sourcing.
Some of these must include: (1) acting in good faith and in the public interest (properly defined); (2) act responsibly, professionally, ethically and with honesty and integrity; (3) ensure proper and adequate verification of facts based on evidence and provide a right of reply and above all; (4) not have economic or other interests to protect.
Without a proper definition and without establishing clear limits to its application, we may well find that the term “SLAPP” becomes devoid of any real and meaningful value. We should be extremely concerned that someone who has not acted responsibly or fairly may describe themselves as a victim-gag simply because they have, for example, received letters of complaint from lawyers.
The media should carefully examine any so-called “SLAPP victim” and think critically about whether their right to free speech has actually been curtailed, or whether they have simply behaved irresponsibly and brandishing the SLAPP card to divert attention.
We need to analyze the motivations of those who pose as SLAPP “victims” as soon as someone dares to challenge their conduct, especially when we think of the real victims who have been denied the right to free speech, for example activists from the Gulf Arab states.
Gaps in the current process
It is extremely shocking and stressful to find oneself the victim of false declarations and it is also extremely expensive and time-consuming to clear oneself.
This notion of a “SLAPP victim” is perpetuated by the mainstream media. There seems to be a fundamental misunderstanding of the role of the courts in resolving private disputes. In most cases, the English legal system already has robust and effective mechanisms in place to deal fairly, effectively and proportionately with matters which constitute or are perceived to constitute an abuse of process. Judges are well equipped to dismiss or strike out hopeless and improper claims and the party who is found guilty of pursuing an illegitimate claim is often subject to severe cost consequences.
However, as a current litigant, I understand that the current process of pursuing a defamation claim is very expensive. Likewise, I am sensitive to the fate of a defendant who is innocent and who is wrongfully prosecuted by a blatant bully. The process can be extremely intimidating and expensive.
I wonder if Parliament might consider establishing a body of libel courts presided over by judges with experience in applying libel law in practice. They could answer key questions: what is defamatory; whether what is being said is in the public interest; whether the parties act in good faith; whether the qualified immunity defense should be available; and whether he can be vanquished by malice. Extensive case law already exists and these issues could be dealt with efficiently, quickly and inexpensively by these courts. It should only be on questions of law, not of fact, and on the award of damages, if appropriate and/or justified, that the parties could appeal to the High Court.
As far as my legal complaints are concerned, no court has determined that my actions amounted to abuse or resembled a “SLAPP” and I would expect them never to, because they never do. are not. A small number of MPs simply prejudged the issue in the same way they once did by naming parties who had won injunctions granted by the courts to protect their privacy.
Given my own recent experience, I believe that a definition of SLAPPs and therefore of SLAPP victims must be formulated, that a cheaper, faster and more efficient system of judgment must be instituted and that the possibility of using the Parliamentary privilege should not be subject to abuse, otherwise a court of law becomes totally redundant.