Characteristics of SLAPPs
- SLAPP is a form of strategic litigation or impact litigation.
- SLAPPs often take the form of civil suits for defamation.
- Forum shopping is a common feature of SLAPPs.
- SLAPPs are effective at silencing critics.
- SLAPPs may include extra or spurious defendants.
History and Jurisdictional Variations
- The term 'SLAPP' was coined in the 1980s.
- SLAPPs were originally defined as lawsuits involving communications made to influence governmental action.
- The right to petition the government is protected by the First Amendment.
- SLAPPs are still defined as civil lawsuits filed against those who have communicated to government officialdom.
- New York Supreme Court Judge J. Nicholas Colabella described SLAPPs as a significant threat to First Amendment expression.
- The Protection of Public Participation Act 2008 in the Australian Capital Territory protects conduct intended to influence public opinion.
- Parties starting or maintaining a proceeding for an improper purpose may be ordered to pay a financial penalty.
- Political libel and forum shopping incidents have been referred to as SLAPPs in Canada.
- Quebec, British Columbia, and Ontario have enacted anti-SLAPP legislation.
- The Fraser v. Saanich case in British Columbia was one of the first explicitly ruled as a SLAPP.
- SLAPPback refers to the ability of defendants to counter-sue SLAPP plaintiffs.
- There is little academic concern or examination of political subject matter or remote forums as clear indicators of SLAPPs in Canada.
Criticism of anti-SLAPP laws
- Some believe that there should not be barriers to the right to petition for those who sincerely believe they have been wronged.
- The difficulty in drafting and applying SLAPP legislation is to balance early termination of invalid suits without denying a legitimate day in court.
- Anti-SLAPP laws are generally considered to have a favorable effect.
- Many lawyers have fought to enact stronger laws protecting against SLAPPs.
- Criticism of anti-SLAPP laws often stems from concerns about denying a legitimate day in court.
Efforts in Specific Jurisdictions
- The Protection of Public Participation Act (PPPA) was enacted in British Columbia in April 2001 following the Fraser v. Saanich case.
- The legislation was repealed in August 2001 after extensive debate on its merits and criteria for judges.
- BC activists, especially the BCCLA, have advocated for a broad understanding of SLAPP and a broad interpretation of judicial powers.
- In March 2019, the legislature unanimously passed another anti-SLAPP bill, the Protection of Public Participation Act.
- In Ontario, the Daishowa v. Friends of the Lubicon case in 1996 provided insights into SLAPPs.
- The Ontario Attorney-General introduced legislation to dismiss strategic lawsuits attacking free expression on matters of public interest.
- Quebec adopted an anti-SLAPP bill in 2009, making it the first Canadian jurisdiction with a specific mechanism.
- The European Parliament passed a resolution in 2020 expressing concern about media freedom and called for minimum standards against SLAPP practices across the EU.
Impact and International Perspectives on SLAPP
- SLAPP suits can have a chilling effect on free speech and public participation.
- Anti-SLAPP legislation aims to protect the right to free speech and encourage public participation.
- The dismissal of SLAPP suits can help safeguard democratic values and promote open dialogue.
- SLAPP suits are not limited to specific countries and have been observed in various jurisdictions worldwide.
- Different countries have developed their own approaches to address SLAPP suits, including anti-SLAPP legislation and legal doctrines.
- The recognition of the importance of free speech and public participation varies across jurisdictions.
- International cooperation and sharing best practices can help combat SLAPP suits globally.
- Efforts are being made to promote awareness and provide support to individuals and organizations facing SLAPP suits internationally.
Strategic lawsuits against public participation (also known as SLAPP suits or intimidation lawsuits), 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, repeated frivolous litigation against a defendant may raise the cost of directors and officers 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.
To protect freedom of speech, some jurisdictions have passed anti-SLAPP laws (often called SLAPP-back laws). These laws often function by allowing a defendant to file a motion to strike or dismiss on the grounds that the case involves protected speech on a matter of public concern. The plaintiff then bears the burden of showing a probability that they will prevail. If the plaintiffs fail to meet their burden their claim is dismissed and the plaintiffs may be required to pay a penalty for bringing the case.
Anti-SLAPP laws sometimes come under criticism from those who believe that there should not be barriers to the right to petition for those who sincerely believe they have been wronged, regardless of ulterior motives. Hence, the difficulty in drafting SLAPP legislation, and in applying it, is to craft an approach which affords an early termination to invalid, abusive suits, without denying a legitimate day in court to valid good faith claims. Anti-SLAPP laws are generally considered to have a favorable effect, and many lawyers have fought to enact stronger laws protecting against SLAPPs.
