Why an anti-SLAPP law must remain on the legislative agenda

On 7^th May 2026, the Scottish public will take to the polls. In a somewhat unusual coincidence, the 7^th May is also the deadline for EU Member States to transpose EU Directive 2024/1069 on protecting persons who engage in public participation from manifestly unfounded claims or abusive court proceedings. While Scotland no longer falls under this transposition requirement, the present Scottish government committed to reforming the law on strategic lawsuits against public participation (SLAPPs) following a public consultation in 2025. In addition, the UK remains a member of the Council of Europe, who adopted a non-binding recommendation on countering the use of SLAPPs in 2024. 

What are SLAPPs? 

For those unfamiliar with the term, SLAPPs is an acronym for Strategic Lawsuits Against Public Participation. SLAPPs are lawsuits or threats of legal action that have the aim or effect of suppressing public participation on matters of public interest. SLAPPs achieve this aim by engaging abusive litigation tactics that increase the financial and psychological cost of defending litigation. Such tactics include: the exploitation of an imbalance of power to silence the defender; demands for disproportionate, excessive or unreasonable remedies; targeting and isolating individuals rather than the organisations they work for; taking multiple and coordinated actions; and engaging in delaying tactics to exhaust the defender’s resources. Outside of the court room, the pursuer may engage in other forms of intimidation, harassments or threats and attempt to discredit or intimidate the SLAPP target. Common SLAPPs targets 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. 

By suppressing public interest information, SLAPPs present an immediate threat to the defender’s right to freedom of expression. However, the impact does not end there, SLAPPs also deprive citizens of the information they need to exercise their right to take part in the conduct of public affairs. A growing awareness of the impact SLAPPs have on democracy, the rule of law and human rights has led to legislative interventions in North America, South East Asia, and now Europe. In addition, courts around the world have engaged existing judicial powers to combat SLAPPs. 

Developments in Scotland 

Scotland is also taking action. 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 SLAPPs. Following evidence sessions, the Scottish Government held a consultation in early 2025, inviting interventions on the sufficiency of existing Scots law to guard against SLAPPs, views on personal experience of SLAPPs, and practices in other jurisdictions on legislative and non-legislative responses to SLAPPs.  

Consultation Responses 

According to the Government’s analysis of responses, the majority of respondents expressed the view that – 

1. SLAPPs exist and are being used to stifle legitimate freedom of expression; 

2.     SLAPPs need to be tackled, mainly through reform of the law; and

3.    that reform should resemble the Model Law consulted on. 

he analysis found that, in Scotland, SLAPPs were primarily experienced by individuals who described the personal cost of being threatened with significant legal costs. One respondent described the impact of being SLAPPed as having “a detrimental effect on our time and resources, as well as our ability to publish in the public interest.” Following question on personal experiences of SLAPPs, respondents were then asked to consider whether Scots law needed to be reformed to tackle SLAPPs. To aid respondents, the consultation paper provided an useful overview of existing Scots law protections. 

The consultation responses demonstrated that existing procedural safeguards appear insufficient to combat SLAPPs. In brief, presently there are few procedural safeguards for SLAPP targets to leverage. In terms of insulating the defender from exorbitant costs, the options are limited. The court has the discretion to order a party to find caution which is typically exercised where there are concerns that the pursuer cannot afford to raise proceedings or pay expenses. The courts can also limit the amount of expenses payable in certain types of litigation through protective expenses orders. However, in general, expenses follow the event, meaning the unsuccessful party will bear the cost of their own legal expenses and those of the successful party.  

In terms of the power to dismiss abusive litigation, the courts have few mechanisms available to them. First, vexatious litigation orders are available where a person has habitually and persistently, without any reasonable grounds for doing so, instituted vexatious civil proceedings. Second, a party may apply for summary decree. The Sheriff Court has extended summary decree to both parties, while the Court of Session restricts summary decree to the pursuer. As such, SLAPP defenders will only have access to this procedural safeguard in the Sherriff Court, which further requires them to demonstrate that the opposing party’s case has no real prospect of success and there exists no other compelling reason why a summary decree should not be granted. Finally, Scots law does not have a well-developed doctrine of abuse of process; where the doctrine has been invoked, the courts have cautioned that the abuse of process doctrine was a “drastic power” that should be “exercised sparingly” and only used as a “last resort.”  

In addition, it should be noted that the Economic Crime and Corporate Transparency Act 2023 includes an anti-SLAPP provision in section 195. Whilst the ECCTA is notable in that it introduced a statutory definition of a SLAPP, it is limited in scope, only extending protection to those reporting on economic crime. The ECCTA has been further criticized for requiring the court to identify the subjective intention of the filer and for lacking any means to compensate the SLAPP target or punish the pursuer. With that said, the relevant provision was successful invoked in the recent case of Kamal v Tax Policy Associates Ltd [2026] EWHC 551 (KB). However, the judgment entrenched the need to establish the intention of the filer, with Mrs Justice Collins Rice stating that the intentionality requirement, “occupies a space between negligence or incompetence on the one hand and calculated (or ‘strategic’) dishonesty on the other: the former is insufficient, and the latter unnecessary […] There may well be cases where what the conduct of a claimant evinces is best expressed as something like a reckless or wilful disregard for, or blindness to, the requirements and expectations of properly conducted litigation and the impact of their behaviour on a defendant.”  

On the point of the sufficiency of Scots law, the consultation concluded that “it would appear that existing provisions in Scots law are considered by a majority of respondents to be insufficient to address the issues manifested by SLAPPs”. The consultation then turned to consider avenues to reform. In particular, the government asked targeted questions on aspects of the EU Directive and a model law drafted by members of the University of Aberdeen’s Anti-SLAPP Research Hub. The Model Law was the subject of a previous journal article in August 2025.  

In brief, the Model Law was drafted to give effect to the Scottish government’s ambition to incorporate international human rights protections into Scots law, the United Kingdom’s ongoing obligations as a member of the Council of Europe, and recent developments in the European Union to counter SLAPPs. 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; allows for penalties to be imposed on those who abuse the court system; includes provisions to shift the cost of litigation; and empowers courts to guard against foreign SLAPPs. The Model Law also empowers government ministers to introduce data collection and information sharing services. 

While the majority of respondents preferred the Model Law, it was noted that there are a number of provisions which need to be more fully adapted to the Scots law context.  

Conclusion 

Significant progress has been made on combatting SLAPPs in Scotland. In 2022, SLAPPs were a relatively unknown issue, leaving SLAPP targets isolated and vulnerable. While there was initially little appetite from the Scottish government to introduce legal reforms, meaningful engagement with the petitions committee and interested stakeholders led to greater understanding and awareness of the scope of the issue and the insufficiency of Scots law to combat SLAPPs. The consultation has served to confirm that SLAPPs remain an issue in Scotland (often living in the shadow of the law). Whether the government changes in May, the commitment to combatting SLAPPs must remain.  

Dr Francesca Farrington is a lecturer at the School of Law and Social Justice, University of Liverpool. Dr Farrington has consulted on SLAPPs for the United Nations, Coalition Against SLAPPs in Europe, European Parliament, and Clooney Foundation for Justice. She is a member of the UK Anti-SLAPP Coalition, the SLAPPs Research Group and former Convenor of the Anti-SLAPP Research Hub (University of Aberdeen).