The SRA stops secret libel letters

The SRA has warned solicitors to stop sending libel letters which falsely claim to be confidential, and mustn’t be published. This should dramatically change the landscape for everyone from large newspapers to individual tweeters and bloggers. It’s now up to us to take advantage of it.

Back in July, the Chancellor of the Exchequer instructed lawyers to write to me, accusing me of libel and requiring me to withdraw my allegation that he had lied. They claimed their letters were confidential, and warned me of “serious consequences” if I published them. This was tosh. I did not retract, and I published the letters.

I don’t think of myself as particularly naive, but was shocked to discover that fibbing about the confidentiality of libel threats is standard practice in the libel world. It has a chilling effect on free speech in this country – the rich and powerful can silence their critics so completely that we don’t even know they’ve been silenced. It’s a hallmark of SLAPPs – “Strategic Lawsuits Against Public Participation” – which have become distressingly common.

It may come as a surprise to many people, but solicitors are not allowed to tell fibs. The Solicitors Regulation Authority requires solicitors to behave in accordance with the SRA Principles: to act with honesty, integrity, independence, and to uphold the rule of law. Intimidating people into not publishing letters they are perfectly entitled to publish is the very opposite of these Principles.

So I wrote to the Solicitors’ Regulation Authority, asking them to end the practice of solicitors making phoney claims of confidentiality in libel letters. The SRA sent me a promising initial response. At the same time, the Anti-SLAPP Coalition have been pushing for both strong SRA guidance and a change in law – so I am playing a small part in a much wider campaign1And also important to thank everyone who has personally helped me – tax accountants, lawyers, QCs, academics, experts on confidentiality and privilege etc etc – a huge amount of generosity from a large number of people, most of whom I cannot name, but all of whom I’m immensely grateful to.

Yesterday the SRA published their final guidance on SLAPPs – and it could not be clearer. Lawyers cannot attempt to prevent the publication of their libel letters by claiming the letters are “confidential” or “without prejudice” without very good reason.

Here’s the key section:

We expect you to ensure that you do not mislead recipients of your correspondence, and to take particular care in this regard where that recipient may be vulnerable or unrepresented.

One way this can happen in this context is by labelling or marking correspondence ‘not for publication’, ‘strictly private and confidential’ and/or ‘without prejudice’ when the conditions for using those terms are not fulfilled.

We accept that marking a letter with such terms might be necessary if (for instance) an individual needs to disclose private and confidential information in order to disprove facts intended for publication [Dan note: these cases are rare – there was a reason my example involved a rampaging rhinoceros]. If so, it might also serve a purpose in ensuring correspondence is not read by an unintended recipient and/or to inform the recipient that they cannot rely on the defence of consent if they choose to publish any of the relevant material. Recipients might also properly be warned as to the legal risks of publication of such correspondence (which may include aggravation of any damages payable).

However, you should carefully consider what proper reasons you have for labelling correspondence in these ways, and whether further explanation is required where the recipient might be vulnerable or uninformed. Such markings cannot unilaterally impose a duty of privacy or confidentiality where one does not already exist. Clients should be advised of this and warned of the risks that a recipient might properly publish correspondence which is not subject to a pre-existing duty of confidence or privacy.

Equally, correspondence should not be marked as ‘without prejudice’ if that correspondence does not fulfil the conditions for that label. You should consider whether the communication represents a genuine attempt to compromise an existing dispute. There should ordinarily be no need to apply it to correspondence which does not offer any concessions and only argues your case and seeks concessions from the other side.

Now compare this with what I received from Zahawi’s lawyers, Osborne Clarke:

“It is up to you whether you respond to this email but you are not entitled to publish it or refer to it other than for the purposes of seeking legal advice. That would be a serious matter as you know.”

And then:

You have said that you will not accept without prejudice correspondence and therefore we are writing to you on an open, but confidential basis. If your request for open correspondence is motivated by a desire to publish whatever you receive then that would be improper. Please note that this letter is headed as both private and confidential and not for publication. We therefore request that you do not make the letter, the fact of the letter or its contents public.”

I have given Osborne Clarke several opportunities to retract these false claims, and they have declined. I will therefore be writing to the SRA to make a formal complaint. I would urge everybody who’s received a libel letter falsely labelled as confidential/without prejudice to take similar action. This is whether you received the libel letter this morning or ten years’ ago, and whether you’re the Financial Times or a Twitter account with 20 followers2This is not a theoretical example; after my experience, I was inundated with messages from people with small blogs and Twitter followings who had been at the receiving end of SLAPP letters. And what action should someone in this position take, particularly if they don’t have access to legal advice? There’s very good news on that front coming soon – I’ll be writing on this in the next few days.

The point isn’t to be vindictive, it’s to change the whole risk/reward calculation for libel lawyers and their clients. Once the wealthy and powerful know they can’t stop a libel threat being published, and there’s a high risk it will receive more publicity than the original accusation, then suddenly the whole idea of sending it becomes less appealing.

If you want to threaten someone with libel: fine3Actually not fine; I tend to think libel law should only apply to the most serious of deliberate lies. But you’ll have to face the consequences of everyone knowing what you’re up to.

But this only works if we – the recipients of these letters – act. And that’s about to become a whole lot easier. More to follow!

Photo from the Anti-SLAPP Coalition conference on 28 November 2022, where I was kindly invited to speak on a panel.

  • 1
    And also important to thank everyone who has personally helped me – tax accountants, lawyers, QCs, academics, experts on confidentiality and privilege etc etc – a huge amount of generosity from a large number of people, most of whom I cannot name, but all of whom I’m immensely grateful to.
  • 2
    This is not a theoretical example; after my experience, I was inundated with messages from people with small blogs and Twitter followings who had been at the receiving end of SLAPP letters
  • 3
    Actually not fine; I tend to think libel law should only apply to the most serious of deliberate lies

11 thoughts on “The SRA stops secret libel letters”

  1. Richard Smith 29 November 2022

    I can help feel this is a retrograde step in privacy. correspondence should always have at least the presumption of privacy – I should be able to write to people without fear of that letter being paraded around Facebook. (Except of course, if writing in an official capacity).

    Often people involved in the most serious libels of others have nothing to lose – they don’t work, they don’t own a house, they have no assets and they throw around the most horrendous accusations with absolutely no proof (I should say I know nothing about your case so cast no aspersions here). Now you cannot even defend yourself from malicious and harassing publications without fuelling more nasty harassment. Might that not be an unintended consequence of this guidance ?

    • I can’t agree at all. Correspondence between two private individuals may have the presumption of privacy. But if I write to you, out of the blue, threatening you with dire consequences if you don’t do as I say, there’s not the slightest moral, ethical or legal reason why you should keep it confidential.

      • Richard Smith 29 November 2022

        I’m not sure you can characterise a letter before action under the pre-action protocol in such terms. They are an important part of the litigation process.

        Let’s take another example. I’m a tenant and I rent a house that is mouldy and broken down. I send my landlord a pre action letter under the housing act, and he publishes it on Facebook with pictures of my children’s bedroom and encourages other landlords to not rent to me in the future as I’ve ‘threatened dire consequences’ out of the blue.

        Many people who have been wronged face an uphill battle as it is pursuing legal action, any steps that make it harder and more intimidating to find legal redress seem wrong, to me.

        • The clear difference is that the condition of your house, and the pictures of your child’s bedroom, plausibly are confidential and/or private information, and the landlord:tenant relationship imputes a duty of confidence. My position re the Zahawi correspondence is shared by the SRA and every confidentiality specialist I’ve spoken to. If you disagree with it, then why? What is the confidential information in the OC letter? I can’t see any. Why would a duty of confidence arise? On what authority? There is none.

          • Richard Smith 29 November 2022

            I don’t know the contents of your letter but the very fact that it was sent under the pre action protocol is enough for me to believe it SHOULD be confidential. And it arises from the desire of the author, who I think ought to be able to write on that basis. (The SRA obviously disagrees, and agreed with you). Not least because the protocol is designed to help achieve a settlement at low cost out of court. Onward publication is antagonistic to that goal.

            I don’t believe the landlord and tenant relationship is one of confidence, but even if it was, what if I was a visitor electrocuted by faulty wiring? I have no pre-existing relationship with the person I want to sue. Should they really be able to tell the world about my injury?
            Or in defamation – if it turns out that the defendant was defamatory, it’s just been published far more widely – yes that may aggravate damages, but what good that if the defendant is broke?

            I see two sides to it – there are clearly arguments both ways; but I think the chilling effect on those who need to sue much more powerful individuals might be significant.

          • There aren’t two sides. The letter wasn’t sent under the pre-action protocol. Even if it was, there is no legal authority for saying that creates a duty of confidence, regardless of content. I feel you are making a normative argument rather than a legal one.

          • Richard Sage 8 December 2022

            @Richard Smith I think we need more openness rather than less.
            If said landlord did highlight a tenant as being undesirable due to complaining about conditions, as a landlord potentially renting to that tenant, I would not want to rely on the landlord complaining, but on see the details of the correspondence, particularly including pictures, from which one can usually work out pretty quickly which party is being unreasonable.
            Sunlight is the best disinfectant against abuse of process, as well as against corruption.
            Are there not laws against blacklisting by the powerful? (which are not needed the other way round)

  2. Well done for making a difference Dan.

    • Thanks,but lots of people deserve credit here – the Anti-SLAPP Coalition and everyone else involved in the campaign, the SRA, and David Davis and Dominic Raab (who I’ve no doubt deeply care about this issue).

  3. Brilliant. Congratulations. Congratulations also on your continuing self deprecation. Thank you.

    • Richard Sage 8 December 2022

      Excellent new for allowing the Streisand effect to occur naturally.

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