CLA News / President’s Message: September 2026 “SLAPPs and the Judiciary: Protecting Public Participation and the Rule of Law” by CLA President Steven Thiru

SLAPP suits appear to be on the increase here, as is the case globally. The finding here that the common law doctrine of abuse of process can accommodate the SLAPP suit defence ensures that courts can protect their own integrity by guarding over the use of their processes. And, ultimately, it ensures that the law serves its primary purpose, to see that justice is done, and not to be abused for odious, ulterior purposes.

Justice Steven Arnold Majiedt, Justice of the Constitutional Court of the Republic of South Africa, in Mineral Sands Resources (Pty) Ltd and Others v Reddell and Others [2022] ZACC 37, [100]

Justice Majiedt’s observation captures an important principle: the judiciary’s essential duty to address Strategic Lawsuits Against Public Participation (‘SLAPPs’). Such lawsuits may exploit financial and procedural imbalances to intimidate, silence, and exhaust activists, grassroots campaigns, community groups, civil society organisations, public interest watchdogs, journalists and media organisations, trade unions, scientists, and other whistleblowers who engage in matters of public concern, particularly where the legal process is being used for an ulterior or improper purpose rather than the genuine vindication of legal rights.

By recognising that anti-SLAPP protections can be accommodated within the common law doctrine of abuse of process, the Constitutional Court of South Africa affirmed that courts are not passive arenas for private coercion, but rather active bulwarks established to ensure the legal system is not weaponised for oppressive ends.

In essence, the judiciary acts as a vital gatekeeper by addressing abusive claims at the earliest practicable stage and, where the law permits, mitigating potentially disproportionate pre-trial costs. By balancing competing private and public interests, scrutinising the circumstances and motives of proceedings, and imposing appropriate cost sanctions where warranted, judges can help restore parity to asymmetrical disputes. In doing so, the bench preserves its own institutional integrity and fulfils its constitutional role in safeguarding access to justice and the rule of law.

The Escazú Agreement: From Environmental Rights to Judicial Protection

The Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean — commonly known as the Escazú Agreement — stands as a milestone in modern international human rights and environmental law. Adopted in March 2018, the Agreement translates Principle 10 of the 1992 Rio Declaration into legal obligations, guaranteeing transparent access to environmental information, structured public participation in decision-making, and open access to judicial remedies.

These protections are directly relevant to the challenge posed by SLAPPs. Meaningful public participation requires not only access to information and opportunities to participate in decision-making, but also effective access to justice and protection for those who exercise their rights in matters of public interest. Although the Escazú Agreement is not an anti-SLAPP instrument as such, its provisions provide an important framework for safeguarding environmental defenders against threats, intimidation, and other forms of retaliation.

Crucially, the Escazú Agreement recognises that meaningful environmental stewardship is inseparable from the fundamental rights of the communities and grassroots activists who defend the planet’s ecosystems. At the heart of the Agreement’s protective architecture lies Article 9, which is dedicated specifically to human rights defenders in environmental matters.

This provision requires States Parties to guarantee a safe and enabling environment in which environmental defenders can act free from threat, restriction, and insecurity. It further requires States Parties to take adequate and effective measures to recognise, protect, and promote their rights, including their rights to life, personal integrity, freedom of opinion and expression, peaceful assembly and association, and free movement, as well as their ability to exercise their access rights. Importantly, Article 9 also requires appropriate, effective, and timely measures to prevent, investigate, and punish attacks, threats, and intimidation against environmental defenders while exercising their rights.

While Article 9 does not expressly refer to SLAPPs, its protections are significant and closely aligned with the broader objective of safeguarding meaningful public participation and access to justice.

However, the transformative promise of the Escazú Agreement is only as strong as its domestic enforcement and implementation. Global Witness has documented killings and forced disappearances of land and environmental defenders, with Latin America remaining the worst-affected region. It observed that there has been no clear reduction in attacks since the Agreement entered into force, underscoring the importance of moving from adoption to the effective implementation of its protections.

In effect, without robust national enforcement frameworks and binding accountability channels, legal guarantees risk remaining hollow while those speaking out on matters of public concern continue to face existential threats.

Refusing to Stand Idle: When Courts Step In

While the development of comprehensive national frameworks and domestic legislation can be a protracted and uncertain process that leaves those targeted by SLAPPs exposed in the interim, courts have nevertheless refused to remain passive bystanders.

Although the Escazú Agreement is not an anti-SLAPP instrument, its guarantees concerning access to environmental information, public participation, and access to justice can complement anti-SLAPP protections by strengthening the conditions in which environmental advocacy and public interest participation can take place. Courts have accordingly invoked, where appropriate, principles from the Agreement to address procedural hurdles, expand civic space, and facilitate access to environmental justice.

The following cases illustrate how courts have given practical effect to these principles in varying procedural and institutional contexts.

1)    John Mussington and another v Development Control Authority and 2 others [2024] UKPC 3 — Judicial Committee of the Privy Council

Barbudans John Mussington and Jacklyn Frank initiated a judicial review challenging the Development Control Authority’s approval of an international airport airstrip on the ecologically fragile island of Barbuda, amid concerns about the absence of public disclosure of the permit applications and an Environmental Impact Assessment (‘EIA’).

While lower courts dismissed the challenge, ruling that the applicants lacked standing, the Judicial Committee of the Privy Council (‘JCPC’) decisively overturned that approach, finding that the appellants had demonstrated sufficient interest to bring the challenge. The JCPC’s reasoning was grounded in the particular circumstances of the appellants.

Crucially, the JCPC adopted a broad approach to standing in environmental judicial review, and linked that approach to Antigua and Barbuda’s obligations under the Escazú Agreement, including Article 7’s provision for public participation in environmental decision-making.

2)    Ramon Gaskin v Minister of Natural Resources and Others [2024] CCJ 14 (AJ) GY — Caribbean Court of Justice

In this case, activist Ramon Gaskin challenged the validity of an offshore Petroleum Production Licence granted to a joint-venture consortium, arguing that each co-venturer was required to secure separate environmental permits and financial liability guarantees.

Although the Caribbean Court of Justice (‘CCJ’) ultimately upheld the legality of the licence, the Court made a noteworthy determination regarding litigation costs. Expressly citing the Escazú Agreement’s core objective of facilitating access to legal protection and recourse without prohibitive financial barriers, the CCJ declined to order costs against the unsuccessful appellant, recognising the public interest value of bona fide citizen litigation concerning environmental protection.

3)    Greenpeace Argentina et al. v Argentina et al. 2022 — Federal Court of Mar del Plata No. 2

Environmental groups and other applicants challenged state approval of offshore seismic oil exploration in the Argentine Sea, prompting the Federal Court of Mar del Plata No. 2 to issue a precautionary injunction suspending the project. The Court grounded its ruling in deficiencies concerning environmental information and public participation under the Escazú Agreement, including the absence of consultation with the affected municipality and insufficient assessment of cumulative impacts.

Although the appellate court subsequently annulled the injunction, it nonetheless imposed additional environmental assessment and public participation requirements. The original injunction, however, represented a significant recognition of the importance of environmental information and public participation rights under the Escazú Agreement. In a later stage of the proceedings, the public prosecutor supported a further precautionary measure, stressing deficiencies in compliance with various obligations under the Escazú Agreement.

These cases illustrate that while advocacy for comprehensive national frameworks continues, the judiciary is not necessarily waiting in the wings. Rather, courts across diverse jurisdictions are, within the limits of their respective legal frameworks, using existing judicial powers to give effect to the values embodied in the Escazú Agreement. Although these decisions do not themselves constitute anti-SLAPP adjudication, they demonstrate how judicial institutions can protect the civic space on which effective public participation — and, ultimately, resistance to abusive litigation — depends.

Anti-SLAPP mechanisms protect public participation from being suppressed through the misuse of legal proceedings; the Escazú framework safeguards the underlying conditions necessary for meaningful public participation, including access to information, access to justice, and protection of human rights defenders in environmental matters. Taken together, these strands demonstrate the judiciary’s dual role: preventing its own processes from being weaponised through SLAPPs while protecting the wider civic space in which meaningful participation in matters of public interest can take place.

From Escazú to a Commonwealth Framework

The significance of the cases, and other cases like them, should not obscure the reality that judicial intervention alone cannot substitute for comprehensive statutory reform. As illustrated in Palacio Urrutia et al. v Ecuador (Serie C. No. 446), the Inter-American Court of Human Rights ordered Ecuador to decriminalise slander and insult against public officials, offences under which SLAPP proceedings may be initiated. The Court emphasised that employing criminal sanctions against those criticising public authorities can constitute direct or indirect intimidation that curtails freedom of expression and shields unlawful conduct from public scrutiny.

The European Union has taken a further step towards comprehensive anti-SLAPP protections. Directive (EU) 2024/1069 establishes procedural safeguards against manifestly unfounded claims and oppressive court proceedings against public participation, including early dismissal mechanisms and remedies against such proceedings. While its application is limited to civil or commercial matters with cross-border implications, it provides a useful example of translating anti-SLAPP principles into concrete procedural protections.

Importantly, it also illustrates the practical role of the judiciary: courts may be required to consider applications for early dismissal, order security for costs, and impose appropriate costs consequences where proceedings are found to be abusive.

At the regional level, a binding treaty could provide a valuable framework for ensuring more consistent protection across borders. Such an international instrument could establish mandatory baseline standards, encourage Member States to enact robust anti-SLAPP statutes, and create a harmonised framework that reduces the scope for powerful actors to exploit jurisdictional loopholes to silence legitimate public scrutiny.

Just as Latin America and the Caribbean have the Escazú Agreement, the Commonwealth should urgently consider a dedicated, binding instrument of its own. A Commonwealth-wide anti-SLAPP treaty, modelled on the Escazú Agreement, would be directly aligned with the Commonwealth (Latimer House) Principles on the Three Branches of Government, particularly paragraph 10, which mandates that:

Parliaments and governments should recognise the role that civil society plays in the implementation of the Commonwealth’s fundamental values and should strive for a constructive relationship with civil society to ensure that there is broader opportunity for lawful participation in the democratic process.

The Judiciary as a Bulwark Against SLAPPs

More broadly, the absence of dedicated anti-SLAPP legislation should not be understood as leaving courts and other actors within the administration of justice without the tools to respond to improper proceedings. Courts may, within the limits of their existing procedural and substantive powers, protect public participation by scrutinising potentially abusive proceedings, addressing procedural obstacles, and deploying available remedies where litigation is being used for an improper or oppressive purpose. Judges may, where permitted by domestic law, use mechanisms such as summary dismissal, striking out, abuse-of-process doctrines, security for costs, case management powers, and adverse costs orders to prevent or curtail vexatious claims. Prosecutors, attorneys-general, and other relevant justice-system actors may likewise have responsibilities or powers, depending on the applicable legal framework, to identify and resist proceedings that improperly interfere with public participation.

While the CLA continues to advocate for a Commonwealth-wide anti-SLAPP treaty, the judiciary cannot afford to let its guard down. Judges presiding over defamation, nuisance, and commercial disputes involving public interest discourse must exercise heightened vigilance from the earliest stages of the case. The bench must be acutely discerning, looking past polished legal veneer to critically interrogate the underlying motive of the action: is the claimant genuinely seeking redress for a substantive legal injury, or is the court being instrumentalised as an engine of attrition to silence legitimate scrutiny?

Judicial education and training bodies must urgently adapt. Equipping judges with the analytical tools to distinguish bona fide claims from abusive tactics, and empowering them to deploy robust procedural safeguards, early dismissal mechanisms where available, and cost-shifting sanctions where justified, will help ensure that our courts remain sanctuaries of justice rather than instruments of intimidation.

Beyond technical training, however, lies a deeper imperative: heightening judicial consciousness. Judges must develop a greater awareness of the systemic nature of this threat and remain attuned to the judicial conscience that underpins the exercise of their office, including the need to ascertain the true origin, purpose, and motive of these suits. When public interest defenders raise critical questions and are targeted by SLAPPs, the bench is called upon to examine not only the legal merits of the case, but also the consequences of allowing the judicial process itself to be used as a tool of intimidation. In such cases, upholding the judicial oath means ensuring that the authority of the court is used to vindicate legitimate rights and administer justice, not to suppress proper scrutiny.

Until comprehensive statutory shields are codified, an educated, courageous, and vigilant judiciary remains a formidable bulwark in defending public participation and the rule of law.

But the judiciary must do more than merely withstand the misuse of its processes: it must ensure that those processes cannot be weaponised against the very freedoms and civic participation that the rule of law exists to protect. The ultimate safeguard is therefore not judicial power alone, but the principled and vigilant exercise of that power.

Steven Thiru

President

Commonwealth Lawyers Association

16 September 2026

Steven Thiru records his appreciation to Jaishanker Sadananda and Chin Oy Sim for their assistance in preparing this article.