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.”
“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.
- 1And 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.
- 2This 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
- 3Actually not fine; I tend to think libel law should only apply to the most serious of deliberate lies