http://www.miningwatch.org/emcbc/publications/toolkit/5.htm

5. SLAPP Suits—And What to Do About Them
Strategic Lawsuit Against Public Participation, or SLAPP, is a phrase coined by US researchers to describe a class of lawsuit that seems designed more to silence public criticism than to receive legitimate compensation. The SLAPP phenomenon is comparatively new in Canada, but the number of SLAPP-like suits is increasing.

Case Study: Daishowa vs. Friends of the Lubicon

In 1998, Daishowa, a multinational paper company, sued the Friends of the Lubicon ("the Friends"), a volunteer group opposed to logging on traditional lands of the Lubicon Cree Nation in northern Alberta. Daishowa claimed damages resulting from an effective protest campaign to boycott paper bags manufactured by the company.

The SLAPP suit was successfully overturned when the court ruled the boycott and protests were legal. The company appealed the court decision, but dropped their appeal in May 2000.

The defense succeeded because the Friends were meticulous with their research. They could verify everything they had put out in the public domain. Also, they had taken considerable care to engage the company in a dialogue at the outset.

Perhaps the single-most important factor in the judge's deciding whether or not this was legitimate political activism or a deliberate attempt to interfere with corporate economic relations was the fact that both sides of the story had been presented. For example, in their communications with potential boycott supporters, both sides of the story were always being presented. Each person targeted or asked to join the boycott had the opportunity to decide for him or herself whether the material was complete. It was an open, honest way of proceeding with the campaign. Ultimately, this worked in the Friends favour.

Another important aspect to the case was that the targets of the campaign were people who had the ability to make a difference. It wasn't a gratuitous attempt to interfere with their markets somewhere — it was an attempt to get Daishowa's customers to tell the company to stop clear-cutting Lubicon land.

Picketing is legal where it has a legitimate informational content and is directed to people who can reasonably be expected to want to hear the message and be able to do something about it. Picketing is illegal when it is only an attempt to interfere with a company's business relations. If you choose to picket or take some other action, know which side of the line you want to come down on.

Excerpted from a presentation made by Karen Wristen, Sierra Legal Defence fund, at the WMAN "Reaching into the Boardrooms" conference, March 1999.See information on Friends of the Lubicon web site at http://www.tao.ca/~fol/.

SLAPPs are a consideration for anyone doing important advocacy work that disturbs the wealthy and the powerful. However, the risk of being SLAPPed should not deter you from speaking out against what is wrong. Instead, you should inform yourself about SLAPPs, try to avoid them, and fight them when necessary.

What is the purpose of a SLAPP suit?
Every year, thousands of people in the US are SLAPPed. SLAPPs are often not designed to be won, but simply to force critics to hire lawyers and spend time and money fighting the lawsuit rather than pursuing their cause. If this is accomplished, then the SLAPP will have been effective even if it is eventually dismissed or abandoned.

What activities can be SLAPPed?
SLAPP targets have been sued for engaging in a wide variety of protected speech and protected expression activities, including:

writing a letter to the editor,

circulating petitions,

calling a public official,

reporting police misconduct,

erecting a sign or displaying a banner on their property,

speaking at a public meeting,

reporting unlawful activities,

testifying before Congress or state legislatures,

speaking as an officer of an active public interest group,

filing a public interest lawsuit.

How do you know you’ve been SLAPPed?
SLAPPs are normally disguised as regular lawsuits. That is, they take the form of lawsuits for defamation (libel, slander); interference with business or economic relationships; malicious prosecution or abuse of process; or conspiracy to do any of the above.

There are two common types of SLAPPs:

If you’re being effective in writing about a company’s misdeeds, the nature of the claim made against you is probably going to be defamation. Company lawyers will probably charge that you libeled or slandered the target of your activism.

If you’ve taken a shareholder action or a market action (e.g., a consumer boycott), you may attract a SLAPP in the form of an economic tort, where the company charges that you are intentionally interfering with the business relationships of the corporation.

SLAPPs generally have some or all of the following characteristics:

The plaintiff (SLAPPer) is usually a mid to large-sized company.

The monetary compensation claimed is often large – in the millions of dollars, or tens or hundreds of millions (thus elevating the threat).

Injunctions are often claimed.

The defendant (SLAPPee) has been speaking out with some success in an attempt to influence government policy or public perception.

The issue is one of public interest or concern, i.e., public participation is the subject of the attack. Slapp-Related Resources

http://www.sierralegal.org
In Canada, Sierra Legal Defense Fund is a good first contact to make. It has successfully defended environmental groups against SLAPP actions. Search for SLAPP on their web site for more details.

http://www.elc.uvic.ca/SLAPP.htm
The Environmental Law Centre at the University of Victoria has compiled some useful background information on SLAPPs in BC and Canada.

http://www.snf.se/TRN/TaigaNews/News21
The Taiga Rescue Network produced a special newsletter on SLAPP Suits, “Taiga News: Newsletter on Boreal Forests, No.21, June 1997.” It provides good general information. Most of it is specific to Canada, although there are some examples from other northern countries such as Norway and Russia.

http://www.sirius.com/~casp
California Anti-SLAPP Project
This excellent web site includes text of statutes and cases regarding SLAPPs; sample litigation documents; information on anti-SLAPP legislation in California and other states; a Survival Guide for SLAPP Victims; a bibliography on SLAPPs; a questionnaire for reporting SLAPPs in California; and a section on “Defending Against A SLAPP.”

http://www.ebic.org/pubs/slapp.html
Environmental Background Information Center
This site has some information on recent SLAPP developments (although the site has not been updated since June 1997).

http://www.worc.org
The Western Organization of Resource Councils has produced a pamphlet called “How to Deal with Intimidation,” though it is not yet available via their web site.

An offer to settle is often made, on the terms that the target of the SLAPP abstain from the impugned activity, and consent to a “gag order” precluding discussion of the case and/or the settlement.

The suits are often dragged out, with many technical motions and adjournments, and are not pursued with an aim to quick resolution.

SLAPPs often allege conspiracy (naming many individuals with different organizations) or “joint malfeasance” in order to silence and intimidate as large a group as possible.

What is the effect of being SLAPPed?
The mere threat of a SLAPP may have the effect of discouraging public debate. Thus, SLAPPs can silence individuals and organizations who would otherwise make valuable contributions toward issues of public importance. The fear created by a SLAPP influences many constituencies. Environmental and social activists, politicians, union leaders, and advocates of any kind may be quieted by the risk of the expense, uncertainty and hardship involved in defending their right to voice concerns.

How to Avoid SLAPPs
There is no foolproof way to avoid being SLAPPed. Our legal systems allow anyone to at least start a lawsuit, regardless of its merits.

That said, there are some things you can do to reduce the likelihood of being SLAPPed:

You may be legitimately sued for false statements of fact, but not for statements of opinion. But you need to know the difference between fact and opinion. You will not be protected for stating, “In my opinion, Golddiggers Corp. mistreats its workers,” unless, of course, your statement is entirely true. You can be sued if it is shown that your statement is false, even though you tried to qualify the statement as opinion.

In your participation in public decision-making, ensure that your representations are clearly relevant to the issue. For instance, in opposing a development before a town council, discuss the facts and the planning and land-use implications, not your opinion that the developer has an unsavoury personal character.

Ensure that no improper motives are attributed to you by others. For instance, if a developer alleges that you are attacking the development because of personal animosity, clarify publicly that you are only interested in the development itself.

Similarly, ensure that your statements focus on the ultimate objective of your activity — the environmental problem and your proposed solution. Ensure that your position cannot be misconstrued as having the ultimate objective of trying to interfere with business or damage the company in question.

Carefully ensure that you have the facts to back up each and every one of your allegations (see information on libel and slander below). You may want to keep copies of all background materials and note sources of facts and figures quoted so that you can show where you obtained the information.

If you are in any doubt that something you are doing could attract a SLAPP, consult a lawyer (in Canada, contact the Sierra Legal Defence Fund; in the US, the California Anti-SLAPP Project is a good place to begin — see sidebar above for more information on resources).

What to do if you are SLAPPed, or threatened with a SLAPP
Immediately contact a lawyer, and your insurance company (they may, depending on the type of insurance you have, pay for a lawyer to defend you).

Tell your lawyer why you think the lawsuit is a SLAPP. If your lawyer is unfamiliar with SLAPPs, which may be the situation in Canada, refer your lawyer to the resources and law organizations listed below.

Ask your lawyer if they will seek early dismissal of the suit. Remember, SLAPPs are not necessarily designed to win damages, but rather to keep their targets in limbo. Trials can drag on for years. So it is important to derail SLAPPs well before they get to trial.

In Canada, there are few mechanisms to protect the public from SLAPPs. While courts can throw a frivolous or vexatious lawsuit out of court, SLAPPs are framed as ordinary tort lawsuits, i.e., they are not usually frivolous on their face.

Section 2(b) of the Canadian Charter of Rights and Freedoms protects Canadians’ Freedom of Expression. However, the Supreme Court of Canada in RWSDU v. Dolphin Delivery ruled that the Charter does not apply to litigation between private parties, and to date, parties in Canadian SLAPP litigation have been unsuccessful in invoking Charter protection.

In the US, a number of states have fought the rise of SLAPPs with legislation (see http://www.sirius.com/~casp/menstate.html for a list of states) that aims to discourage companies from using SLAPPs. These laws also help citizens to fight SLAPPs cheaply and effectively.

The British Columbia government recently drafted the first legislation in Canada designed to protect people from SLAPPs. BILL 29, Protection of Public Participation Act, went through its first reading in the BC Legislature on July 5, 2000. (A copy of the draft legislation can be found at http://www.legis.gov.bc.ca/2000/1st_read/gov29-1.htm.)

The following paragraphs provide some information on what to do in specific SLAPP situations.

If the charges are libel or slander
Libel and slander charges are the easiest to get out of because this law has been around for hundreds of years, and there are clear, well-defined defenses to it. The first defense, and the easiest one to stick with, is truth. If you can document all that you have said, you’re going to win your case at the end of the day. You’ll probably get some form of punitive costs, or in some jurisdictions, even punitive damages, back from the people who SLAPPed you.

To protect yourself, carefully research and document every allegation you make against the company. As long as you draw conclusions from facts and make sure that you’re drawing the most supportable conclusion from the facts (i.e., you don’t use overblown terminology to characterize the actions or the nature of the players), they’re not likely to be successful suing you.

The defense of Qualified Privilege
There is another type of defense for your statements, which is known as qualified privilege. This is legal terminology for speaking in a place where you are entitled to speak. Such places include, for example, your legislature or city council. These are places where you have been invited to express your opinion in the democratic process, and therefore, you are afforded some protection. It is not, however, complete protection; you still have to tell the truth when you’re making those allegations. You are not insulated from false statements, but expressions of opinions made in good faith in forums like these do not tend to attract damages. In such a situation, you would likely be successful in defending the suit.

The risks of interfering with company economics
In markets-related work, making economic claims is a little more difficult because, obviously, any successful market action has an economic impact on the company. This area of law is very ill-defined, and becomes quite complicated when you start looking into it. There are probably twenty different ways this tort is described, including notions such as “inducing breach of contract,” “intentional interference with economic relations,” or “intentional interference with business relations.”

See Daishowa v. the Friends of Lubicon Case Study, above, for an example of how one group successfully counteracted a SLAPP based on economic damages.

Section 6: Resources

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