Free Speech at Stake — Is it time for stronger protection against SLAPPs in Scotland?

Why do we need a law preventing the use of Strategic Lawsuits Against Public Participation (SLAPPs)? How do other countries approach this legislation? The University of Aberdeen’s Anti-SLAPP Research Hub hosted experts to discuss these issues in depth and examine a draft model law.

Background

In September 2022 Roger Mullin, former member of Parliament for Kirkcaldy and Cowdenbeath, lodged a petition calling for the review and amendment of the law to prevent the use of Strategic Lawsuits Against Public Participation (SLAPPs). Following evidence sessions (including evidence from Ahsan Mustafa, whose Journal article in December 2024 later examined the topic in detail), the Scottish Government committed to a consultation in May 2024. The consultation opened on 28 February 2025 and closed on 23 May 2025.

SLAPPs are lawsuits or threats of legal action that engage abusive litigation tactics to target a natural or legal person’s public participation on a matter of public interest. Common targets of SLAPPs include (but are not limited to) journalists, environmental activists, academics and writers. SLAPPs are often grounded in defamation law, however they are found across the whole spectrum of civil, administrative and criminal law. 

In response to the growing threat that SLAPPs present to democratic participation, the rule of law and human rights, a movement has grown across Europe to combat them through targeted legal reforms. Most pertinent of these reforms are the EU Directive 2024/1069 on protecting persons who engage in public participation from manifestly unfounded claims or abusive court proceedings; and the Council of Europe-adopted Recommendation CM/Rec (2024)2 of the Committee of Ministers to member states on countering the use of SLAPPs.

Introducing the Model Law

On 26 March 2025, the University of Aberdeen’s Anti-SLAPP Research Hub hosted a workshop entitled ‘A Model Anti-SLAPP Law for Scotland’. The workshop convened stakeholders from civil society, academia, government and the legal profession to discuss the model Anti-SLAPP law drafted by Research Hub conveners Professor Justin Borg-Barthet and Dr Francesca Farrington. The Model Law was included as part of the Scottish Government’s consultation on SLAPPs; the full text can be found in Appendix B of the consultation paper.

The workshop aimed to provide a forum to discuss instances of SLAPPs in Scotland, analyse the Model Law, and exchange best practices from other jurisdictions. The overall aim was to identify the legislative and non-legislative measures that ought to be taken in Scotland to address SLAPPs, with a view towards strengthening the Model Law and encouraging a robust response to the Government’s consultation.  

The discussion made it clear that Scotland faces real risks to public discourse and democratic participation if it does not introduce effective anti-SLAPP measures. Participants agreed that SLAPPs undermine not only media freedom but also wider public participation, affecting campaigners, whistle-blowers, researchers and others who challenge powerful interests. Protecting freedom of expression, access to information and the right to speak out on matters of public concern was seen as central.

There was strong support for a targeted Scottish response, informed by European standards but adapted to Scotland’s legal framework. Participants agreed that legislation must do more than mirror the EU Directive; it must deliver practical tools, including early dismissal mechanisms, cost protection for defenders and remedies against abusive litigation. It was recognised that any anti-SLAPP law must align with Scotland’s legal system and culture, including the practicalities of its court system and case management process.

The workshop examined the Model Law in detail with the debate primarily focused on how to best formulate the test for early dismissal, how public participation and abusive litigation should be defined, and whether courts would need further guidance to apply the law effectively.

Expert insight

Comparative experiences from England, Belgium, Canada and the United States were presented by national experts. These panellists highlighted how, in several jurisdictions, early dismissal procedures, intended to speed up cases, have often turned into drawn-out procedural battles. Instead of providing quick relief, they can sometimes burden courts with complex preliminary hearings. Participants agreed that Scotland must design its approach carefully to avoid similar complications.

Participants further emphasised that anti-SLAPP laws are not a panacea and must be complemented by other legal, financial and psychological supports for SLAPP victims. In this vein, financial barriers were another recurrent theme. There was overarching support for the introduction of cost-capping measures, similar to those used in environmental litigation. Such measures would, it was suggested, ensure that anti-SLAPP protections are meaningful, even where legal aid remains scarce. Without these safeguards, defending against a SLAPP could remain out of reach for many, even where an early dismissal process exists.

The Scottish Government’s consultation was welcomed as a genuine opportunity to progress anti-SLAPP reforms. There was a strong sense that, with continued engagement and clear evidence, Scotland has a real chance to deliver effective anti-SLAPP legislation that strengthens public participation and protects against abusive litigation.

This article provides an overview of the key insights from the workshop discussion. It is divided into four sections: (1) importance of an anti-SLAPP law in Scotland; (2) overview of the Model Law; (3) comparative perspectives on anti-SLAPP laws; and (4) discussion on the Model Law.

1. Importance of an Anti-SLAPP Law in Scotland

There was general agreement among participants that SLAPPs are a pressing concern in Scotland and that SLAPPs affect a wide variety of civil society actors, including journalists, environmental campaigners, community organisers and victims of sexual offences. Consequently, an effective anti-SLAPP law must not be limited to protecting media actors and instead must apply to any abusive court proceedings against public participation.

Furthermore, the need for Scotland to consider the introduction of anti-SLAPP legislation (and additional non-legislative measures) is in part due to developments elsewhere in the UK and Europe. Although progress on a private member’s bill on SLAPPs in England and Wales has stalled after the dissolution of Parliament in May 2024, the UK Parliament did include an anti-SLAPP provision in the Economic Crime and Corporate Transparency Act 2023 (ECCTA). However, the ECCTA has been criticised for its limited scope and is not equivalent to bespoke anti-SLAPP legislation.

The EU Directive, which was introduced in April 2024, must be transposed into all EU member states by May 2026. Part of the workshop discussion focused on how this Directive could be transposed into Scots law, particularly given the Scottish Government’s commitment to align with EU law.

Participants noted a number of deficiencies with the Directive, including the limitation of early dismissal to manifestly unfounded cases rather than all abusive court proceedings against public participation. Participants also noted the Directive’s limited scope, applying only to cross-border civil and commercial proceedings. Despite the diverse opinions regarding specific provisions of the Directive, participants recalled that the Directive is a minimum harmonisation instrument for EU member states. Participants were reminded that the Directive establishes a floor, not a ceiling, allowing member states to go beyond and strengthen the standards set out in the Directive.

Also in April 2024, the Council of Europe adopted its Recommendation on countering SLAPPs. Although non-binding, participants noted that implementing the Recommendation through an anti-SLAPP law would signal Scotland’s commitment to aligning Scots law with international human rights law. Moreover, the Recommendation offers valuable insights for protecting against SLAPPs.

2. Overview of the Model Law

The Model Law was the central focus of the workshop and was analysed in detail (see section 4 of this article). It aims to safeguard individuals and legal persons from abusive lawsuits that target their public participation on a matter of public interest. The Model Law gives effect to the Directive and the Recommendation, drawing on best practices from anti-SLAPP laws across the globe (see section 3 of this article). It is designed to fit the realities of Scots law and practice, acknowledging the challenges of implementation.

The Model Law defines key terms (abusive court proceedings, public participation and public interest); provides for an early dismissal mechanism through an accelerated procedure; makes provision for remedies for SLAPP targets (expenses and damages); allows for penalties to be imposed on those who abuse the court system; includes provisions to shift the cost of litigation (security for expenses and third-party interventions); and empowers courts to guard against foreign SLAPPs. The Model Law also empowers government ministers to introduce data collection and information sharing services.

The Model Law empowers courts to dismiss an abusive court proceeding against public participation (as defined in Section 1 of the Model Law) on their own initiative or upon a motion by the defender. While the early dismissal motion is being heard – through an accelerated procedure – the main proceedings are stayed.

An early dismissal motion will be granted, under Section 1 of the Model Law, if “the applicant satisfies the court that the proceeding arises from an act of public participation, unless the respondent satisfies the court that the proceedings are not an abusive court proceeding against public participation; and the harm suffered or likely to be suffered by the respondent is sufficiently serious that the public interest in allowing the claim to proceed outweighs the public interest in protecting that public participation.”

As such, the pursuer in the main proceedings must satisfy a dual test in order to defeat an early dismissal motion. The dual test is based, in part, on the approach adopted in Ontario, Canada.

Once an early dismissal motion has been lodged, the court has 90 days to render a decision on the motion. If the applicant is successful in having the case dismissed, they are entitled to claim a remedy – expenses and/or damages. In addition, even if the case is not dismissed at an early stage but, during the course of the proceedings, the proceedings are determined to constitute an abusive court proceeding against public participation, the defender will be entitled to the remedies set out in the Model Law.

If the court finds that the claim meets the definition of an abusive court proceeding against public participation, there is a presumption that the defender will be awarded full costs, following the approach used in Ontario’s anti-SLAPP legislation. However, the court also has discretion to deny a costs award in limited circumstances.

Conversely, if the motion is dismissed, the SLAPP pursuer will not be entitled to costs unless the court uses its limited discretion to determine otherwise. This ensures that the SLAPP target is not penalised for bringing a motion to dismiss and that the early dismissal mechanism is not abused. Additionally, the court may impose deterrent penalties on the pursuer in the main proceedings if the proceedings are found to constitute an abusive court proceeding against public participation.

3. Comparative perspectives on anti-SLAPP laws

England

Participants discussed the evolution of English defamation law, focusing on the impact of the Defamation Act 2013. It was noted that, while the Act introduced significant reforms such as the “serious harm” requirement to deter trivial claims, it did not prevent a rise in abusive proceedings. One participant observed that the legislative change while intended to reduce litigation had the unintended consequence of generating increased litigation as the contours of new provisions were tested through the courts. Participants cautioned that a similar issue could arise in the context of anti-SLAPP laws.

The 2013 Act also attempted to curb the prominent issue of ‘libel tourism’. While cross-jurisdictional abuse has declined somewhat, defamation law in England still provides opportunities for pursuers to exert pressure on critics through costly, time-consuming proceedings. Ultimately, Section 9 of the 2013 Act has not eliminated international pursuers’ preference for English courts, particularly by those with significant financial resources.

The discussion highlighted that English procedural reforms have delivered only modest improvements. Participants commented on the lack of development regarding English anti-SLAPP law, with changes largely limited to procedural technicalities rather than substantive protections for public participation. That said, participants welcomed recent efforts by the Solicitors Regulation Authority to remind solicitors of their ethical obligations to not engage in SLAPP tactics and to investigate suspected abuses of the legal process. One example cited was the recent investigation and subsequent fining of a lawyer acting on behalf of former chancellor Nadhim Zahawi for sending improper legal correspondence to tax blogger and campaigner Dan Neidle. Nevertheless, some participants still expressed concerns about inconsistencies in regulatory enforcement.

Belgium

SLAPPs in Belgium are increasingly recognised as attacks not only on individual rights but on democratic structures and the rule of law itself.

In response to slow progress in transposing the EU Directive, civil society actors in Belgium created a model law designed to guide legislative action. Following the release of the Belgian model law, political momentum increased rapidly. Within days, two parties advanced proposals at the federal level to fully transpose the Directive and broaden its scope. Further discussions are now underway through consultations with key stakeholders.

As such, the proposal has informed the government response and aims not only to meet minimum EU requirements but to broaden protections domestically. It extends anti-SLAPP mechanisms to criminal proceedings, including harassment, stalking and criminal defamation, recognising that these cases often have a stronger chilling effect than civil litigation. The proposal also extends protections to purely domestic matters.

Belgium’s strategy reflects the complexity of reform: rather than consolidating anti-SLAPP provisions into a single law, changes would amend multiple frameworks – civil codes, criminal codes, human rights legislation and private law.

The Belgian model law introduces an early dismissal procedure whereby claims can be dismissed if they are “manifestly unfounded”, with the burden placed on the pursuer to justify the litigation within a 30-day deadline. The model defines the term ‘manifestly unfounded’ broadly, integrating criteria from the Council of Europe Recommendation. This method maintains respect for the right to a fair trial, while allowing courts to filter abusive claims in a way compatible with European human rights standards.

Canada

An expert panellist shared the Canadian experiences with a focus on Ontario and British Columbia, which have anti-SLAPP legislation aimed at protecting public interest expression across a broad spectrum of legal claims.

The Canadian model presumes dismissal when lawsuits arise from public participation but introduces a structured merits test. A claim must demonstrate real harm outweighing the public interest in the expression. Related proceedings are paused until anti-SLAPP motions are decided, and adverse cost consequences discourage frivolous suits.

However, practice often diverges from theory. After a decade of use in Ontario and six years in British Columbia, anti-SLAPP motions have become lengthy, complex and expensive. The intended expedited review is undermined as litigants engage heavily with merits-based evidence during the dismissal motion. Most motions take four to six months to resolve and frequently cost defenders between CAD 10,000 and CAD 50,000. Scheduling bottlenecks further delay hearings beyond the intended 60-day target. In effect, motions often resemble mini trials.

Although anti-SLAPP laws in Canada have, to an extent, made it more difficult for pursuers to bring SLAPPs, they have not eliminated the chilling effects of procedural and financial burdens. Moreover, because Canadian defamation law lacks a ‘serious harm’ threshold, relatively weak claims can still survive preliminary scrutiny.

The practical effect is mixed: while defenders now have an important tool to resist SLAPPs, misuse of anti-SLAPP motions has grown. Defenders sometimes weaponise motions even when cases are not truly abusive, leading to inflated costs and procedural complications. Appeals procedures were further identified as vulnerable to abuse.

Despite these shortcomings, the Canadian framework remains a reference point for Scotland’s legislative discussions, especially regarding the importance of combining procedural protections with careful judicial management of motions.

United States

The panel then considered the experience of anti-SLAPP law in the United States; one of the first jurisdictions to develop anti-SLAPP protections. The rise of online speech after 2010 accelerated the need for anti-SLAPP reform. Lawsuits increasingly targeted online expressions, from investigative journalism to opinion pieces, prompting further legislative action across multiple states. Anti-SLAPP laws across the US vary in their relative strength and effectiveness.

Strong anti-SLAPP statutes in the US tend to share common features: broad protections for public participation, expedited dismissal procedures, mandatory cost and damage awards for prevailing defenders, and rights to immediate appeal if a motion is denied. These frameworks aim to manage court dockets more efficiently while protecting fundamental rights.

Still, important areas remain uncovered. While 36 states now have anti-SLAPP laws, there is still no federal legislation. Protections vary considerably between states, with some treating anti-SLAPP laws as purely procedural and others as substantive rights. The resulting inconsistency allows for forum shopping and creates uncertainty in cross-border litigation.

Efforts to pass a federal anti-SLAPP statute, led by bodies like the Uniform Law Commission, have gained some ground. The Uniform Public Expression Protection Act sets out clear definitions of protected matters – political, social and cultural expressions – and aims to harmonise protections across states. While there has been some success, full national adoption is still out of reach.

Participants also learned that anti-SLAPP protections have managed to attract support across the political spectrum, especially from diverse media organisations. At the same time, ongoing reforms in states like Texas and Florida show that procedural safeguards, such as interlocutory appeals, are under pressure and must be defended actively.

4. Discussion on the Model Law

Definitions

For the early dismissal mechanism to be triggered, certain definitions need to be satisfied. The drafters of the Model Law explained that they were cautious to ensure that the definition of “abusive court proceedings against public participation” does not refer to the pursuer’s intent but to objective features of abuse, such as disproportionate, excessive or unreasonable claims that cause prejudice to the defender. Definitions which require the subjective intention of the pursuer to be proven are problematic as they may place an insurmountable evidentiary burden on the defender.

To aid courts in navigating the novel early dismissal procedure, participants strongly advocated for the inclusion of a non-exhaustive list of indicators of abuse.

The definition of “public participation” and “public interest” in the Model Law was also explained. It derives from the Directive, is broad and encompasses both freedom of expression and freedom of assembly, while also drawing on case law from the European Court of Human Rights (ECHR) that extends beyond journalistic activity. The definition of public interest is to be interpreted in line with ECHR jurisprudence. Such an approach is common in Scots law, ensuring that legal definitions evolve in harmony with the fundamental principles of the ECHR system. Participants generally endorsed these definitions.

Early dismissal mechanisms

A recurrent theme was the difficulty of designing an early dismissal process that works in practice. Courts need to strike an appropriate balance between the defender’s right to free expression and the pursuer’s reputational rights and right to access justice. Participants expressed their concern that if this balancing act is overly complex or burdensome, anti-SLAPP motions could easily turn into mini trials.

Participants reflected on experiences from Canada, where early dismissal mechanisms often struggled to deliver quick outcomes. Instead of acting as an efficient screening mechanism, courts sometimes became tied up in lengthy arguments on the merits. There was broad agreement that Scotland must learn from these examples. Without clearer procedural limits, early dismissal motions risk turning into mini trials on the merits.

Relatedly, participants questioned the conceptual difference between the two aspects of the dual test, suggesting that they may create unnecessary overlap. Participants agreed that the test would require refinement during the drafting process, and that it may be advisable to adopt a wholesale transplantation of the Ontarian approach or to reflect on the formulation of existing summary decree motions in Scots law.

Accelerated procedure

In relation to the accelerated procedure for early dismissal, some participants questioned whether the 90-day period should be revised, as the test for dismissal will most likely result in a consideration of the merits of the proceedings. It was suggested that any extension of the 90-day period should only occur in specified increments (eg four weeks).

Third-party interventions

There was active discussion around Section 10 of the Model Law, which allows third parties to intervene in court proceedings relating to public participation on a matter of public interest. Several speakers suggested that naming institutions such as the Scottish Human Rights Commission and the Office of the Scottish Information Commissioner directly in the law could help courts understand when third-party interventions are appropriate. Others cautioned that listing organisations too narrowly could unintentionally limit the scope for other interested bodies to intervene.

It was noted that the Model Law deliberately mirrors the language of the EU Directive, keeping the list of potential interveners non-exhaustive. Participants warned that overly prescriptive wording could complicate statutory interpretation and restrict flexibility in future cases. It was suggested that guidance notes or interpretative materials could accompany the law to provide clarity without embedding detailed lists in legislation.

There was agreement that human rights institutions and information bodies have a strong historical mandate to protect public participation. However, participants recognised the risk that courts, traditionally cautious about third-party interventions, may still resist involving third parties that do not provide information beyond that already contained in the parties’ submission.

Participants stressed that any provision on intervention should strengthen the role of relevant bodies to intervene on behalf of the defender, as required under the Directive. Third-party interventions were seen as valuable for bringing expertise and broadening the court’s perspective on the public interest involved in the litigation, particularly in smaller jurisdictions where judicial experience in SLAPP matters may be limited.

Costs, legal aid and access to justice

Financial barriers were cited as a significant concern. Legal aid is available in defamation cases. However, SLAPPs are not limited to defamation. Additionally, in a 2023 response to a Freedom of Information request, the Scottish Legal Aid Board confirmed that between 2016 and 2023, only five cases have been granted a legal aid certificate, with a total value of £2,400.

Since legal aid for defamation cases is limited in Scotland, participants proposed extending cost-capping rules, similar to those found in environmental litigation, to the anti-SLAPP process. Doing so would offer defenders some protection from high legal costs, even if legal aid is difficult to access.

Another concern was the burden that abusive lawsuits place on public resources. Participants suggested that beyond free expression concerns, SLAPPs drain judicial time and public funds, delaying the administration of justice for everyone. There was support for formally recognising this harm and for allowing courts to penalise pursuers who waste public resources through abusive proceedings.

The discussion also underlined the need for financial penalties to be predictable and proportionate.

Aligning with Scots law

There were also a number of technical points made in relation to the alignment of the Model Law with Scots law. In relation to cost-shifting mechanisms, it was suggested that the term ‘caution’ be used in line with Scots law terminology. In relation to the term ‘judicial application pleading’, participants suggested ensuring that it was made clear that this term included applications for interdict.

Broader political and legislative conclusions

Participants acknowledged that political context would heavily influence the prospects for reform. While the Scottish Government has opened a consultation, it has not yet committed to placing anti-SLAPP legislation on the legislative agenda. Participants stressed that continued submission of evidence, from both individuals and organisations, is essential to build momentum for reform. They also warned that if Scotland does not act, it risks becoming a haven for SLAPP litigation, particularly as other jurisdictions tighten their laws. Scotland’s reputation for protecting free expression and human rights could suffer if abusive lawsuits are seen to find a friendly environment in its courts.

At the same time, everyone agreed that legal reform must be designed with Scotland’s judicial culture and civil procedure in mind. Borrowing solutions from other countries without adapting them could introduce new problems. An anti-SLAPP law must strike a careful balance: safeguarding public participation without undermining legitimate rights to reputation and access to justice.

There was a shared understanding that anti-SLAPP legislation must be more than symbolic. It must deliver real, practical tools for early dismissal, clear cost consequences for abusive litigation, and an environment where courts feel empowered to protect free debate rather than trapped in procedural complexity.

Written on behalf of the Anti-SLAPP Research Hub, School of Law, University of Aberdeen, by Boglarka Vincze (PhD candidate), Lizeth Moreno Marquez (PhD candidate), Dr Erin Ferguson (lecturer) and Dr Francesca Farrington (lecturer). With thanks to Ahsan Mustafa, lawyer at Aberdein Considine; Ahsan gave evidence on behalf of the Law Society of Scotland at the Scottish Parliament in relation to reforming the law relating to SLAPPs.