Strategic lawsuit against public participation
Strategic lawsuits against public participation, or strategic litigation against public participation, are lawsuits intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition.
In a typical SLAPP, the plaintiff does not normally expect to win the lawsuit. The plaintiff's goals are accomplished if the defendant succumbs to fear, intimidation, mounting legal costs, or simple exhaustion and abandons the criticism. In some cases, particularly in the context of investigative journalism, repeated frivolous litigation against a defendant may raise the cost of directors and officers and other liability insurance for that party, interfering with an organization's ability to operate. A SLAPP may also intimidate others from participating in the debate. A SLAPP is often preceded by a legal threat. SLAPPs bring about freedom of speech concerns due to their chilling effect and are often difficult to filter out and penalize because the plaintiffs attempt to obfuscate their intent to censor, intimidate, or silence their critics.
Characteristics
SLAPP is a form of strategic litigation or impact litigation that do not have true legal claims but are focused on deterring a message that they do not like. A common feature of SLAPPs is forum shopping, wherein plaintiffs find courts that are more favourable towards the claims to be brought than the court in which the defendant live.Other widely mentioned elements of a SLAPP are the actual effectiveness at silencing critics, the timing of the suit, inclusion of extra or spurious defendants, inclusion of plaintiffs with no real claim, making claims that are very difficult to disprove or rely on no written record, ambiguous or deliberately mangled wording that lets plaintiffs make spurious allegations without fear of perjury, refusal to consider any settlement, characterization of all offers to settle as insincere, extensive and unnecessary demands for discovery, attempts to identify anonymous or pseudonymous critics, appeals on minor points of law, and demands for broad rulings when appeal is accepted on such minor points of law. In some instances it is clear that plaintiffs are attempting to drain defendants of their financial resources by making the lawsuit as costly as possible, and in these cases the plaintiff's motive may not be legal victory, but merely to waste the defendant's time and money.
When SLAPPs involve copyright law, they can be considered as a type of censorship by copyright.
History
The acronym was coined in the 1980s by University of Denver professors Penelope Canan and George W. Pring. The term was originally defined as "a lawsuit involving communications made to influence a governmental action or outcome, which resulted in a civil complaint or counterclaim filed against nongovernment individuals or organizations on a substantive issue of some public interest or social significance." The concept's originators later dropped the notion that government contact had to be about a public issue to be protected by the right to petition the government, as provided in the First Amendment to the United States Constitution. It has since been defined less broadly by some US states, and more broadly in one state where it includes suits about speech on any public issue.The original conceptualization proffered by Canan and Pring emphasized the right to petition as protected in the US under its Constitution's specific protection in the First Amendment's fifth clause. It is still definitional: SLAPPs are civil lawsuits filed against those who have communicated to government officialdom. The right to petition, granted by Edgar the Peaceful, King of England in the 10th century, antedates Magna Carta in terms of its significance in the development of democratic institutions. As currently conceived, the right claims that democracy cannot properly function in the presence of barriers between the governed and the governing.
New York Supreme Court Judge J. Nicholas Colabella said in reference to SLAPPs: "Short of a gun to the head, a greater threat to First Amendment expression can scarcely be imagined." In the US a number of jurisdictions have made such suits illegal, but the conditions that a defendant must satisfy for a dismissal of the suit vary from state to state. In some states, such as California, defendants may be entitled to counter-sue SLAPP plaintiffs under some circumstances. This is commonly referred to as SLAPPback.
Jurisdictional variations
Australia
In the Australian Capital Territory, the Protection of Public Participation Act 2008 protects conduct intended to influence public opinion or promote or further action in relation to an issue of public interest. A party starting or maintaining a proceeding against a defendant for an improper purpose may be ordered to pay a financial penalty to the territory.Canada
Canada's three most populous provinces have enacted anti-SLAPP legislation.British Columbia
Since the repeal, BC activists especially the BCCLA have argued repeatedly for a broad understanding of SLAPP and a broad interpretation of judicial powers especially in intervener applications in BC and other common law jurisdictions and when arguing for new legislation to prevent SLAPPs. The activist literature contains extensive research on particular cases and criteria. The West Coast Environmental Law organization agrees and generally considers BC to lag other jurisdictions.In March 2019, the legislature voted unanimously to pass another anti-SLAPP bill, the Protection of Public Participation Act.
Nova Scotia
A private member's bill introduced in 2001 by Graham Steele proposed a "Protection of Public Participation Act" to dismiss proceedings or claims brought or maintained for an improper purpose, awarding punitive or exemplary damages and protection from liability for communication or conduct which constitutes public participation. The bill did not progress beyond first reading.Ontario
By 2010, the Ontario attorney-general had issued a major report which identified SLAPP as a major problem but initially little to nothing was done.In June 2013, the attorney general introduced legislation to implement the recommendations of the report. The bill proposed a mechanism for an order to dismiss strategic lawsuits which attack free expression on matters of public interest, with full costs and on a relatively short timeframe, if the underlying claims had no reasonable prospect of success.
The bill enjoyed support from a wide range of groups including municipalities, the Canadian Environmental Law Association, EcoJustice, Environmental Defence, Ontario Clean Air Alliance, Ontario Nature, Canadian Civil Liberties Association, Canadian Journalists for Free Expression, Citizens Environment Alliance of Southwestern Ontario, The Council of Canadians, CPAWS Wildlands League, Sierra Club Ontario, Registered Nurses' Association of Ontario and Greenpeace Canada.
The legislation was re-introduced following the 2014 Ontario election as Bill 52, and on 3 November 2015, Ontario enacted it as the Protection of Public Participation Act, 2015.
Quebec
Québec's then Justice Minister, Jacques Dupuis, proposed an anti-SLAPP bill on 13 June 2008.The bill was adopted by the National Assembly of Quebec on 3 June 2009. Quebec's amended Code of Civil Procedure was the first anti-SLAPP mechanism in force in Canada.
Prior to Ontario enacting its own Anti-SLAPP law the bill was invoked there. In the case of Les Éditions Écosociété Inc., Alain Deneault, Delphine Abadie and William Sacher vs. Banro Inc., in which the publisher Écosociété pleaded that it should not face Ontario liability for a publication in Quebec, as the suit was a SLAPP and the Quebec law explicitly provided to dismiss these. The court denied the request, ruling it had jurisdiction. A separate 2011 decision in Quebec Superior Court had ruled that Barrick Gold had to pay $143,000 to the book's three authors and publisher, Les Éditions Écosociété Inc., to prepare their defence in a "seemingly abusive" strategic lawsuit against public participation. Despite the Québec ruling, the book Noir Canada that documented the relationship between Canadian mining corporations, armed conflict and political actors in Africa was never published as part of a settlement which, according to the authors, was only made for the sole purpose of resolving the three-and-a-half-year legal battle.
The Quebec law is substantially different in structure than that of California or other jurisdictions, however, as Quebec's Constitution generally subordinates itself to international law, and as such the International Covenant on Civil and Political Rights applies. That treaty only permits liability for arbitrary and unlawful speech. The ICCPR has also been cited, in the BC case Crookes v. Newton, as the standard for balancing free speech versus reputation rights. The Supreme Court of Canada in October 2011, ruling in that case, neither reiterated nor rescinded that standard.