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ANTI SLAPP CAMPAIGN
Strategic Lawsuits Against Public Participation
Date: 19 November, 1997
You would be surprised who is getting sued these days: A woman who wrote a letter to her MLA about artificial reefs. A municipal councilor who voted in favour of a by-law. A man who handed out leaflets during a referendum about a beer and wine store. An increasing number of Canadians are facing damaging and silencing lawsuits for doing no more than speaking out. Public criticism of a corporation, whether for its labour, human rights or environmental record, can land a law-abiding citizen in court.
The law, as it stands, can do little to help these people. New legislation is needed which:
Affirms the publics right of public participation;
Allows lawsuits designed to silence public dialogue to be dismissed early in the litigation;
Provides protection and support for men and women sued for exercising their freedom of expression; and
Penalizes corporations which abuse the courts in this way.
A SLAPP is a threat to Democracy
Strategic Lawsuit Against Public Participation, or SLAPP, is a phrase coined by American researchers to describe a class of lawsuit which seems designed more to silence public criticism then to receive legitimate compensation. SLAPP suits take the form of a civil suit for damages or injunctive relief filed against an individual or organisation, and arise because of communications by the defendant(s) to a government body, official or the electorate.
Characteristically the SLAPP suit claims a huge amount of money, often alleging conspiracy or joint malfeasance to silence and intimidate as large a group as possible. They 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 goal is accomplished, then the SLAPP will have been effective even if it is eventually dismissed or abandoned. The mere threat of a SLAPP suit may have the effect of discouraging public debate.
SLAPP suits have a highly intimidating and destructive effect. Not only are individuals rights to Freedom of Expression jeopardised, but government reforms to encourage public input may be effectively undermined. Moreover, judicial and other public resources are squandered in this attempt to silence political opponents.
Public Debate Silenced by Existing SLAPPs
Research into SLAPP suits is comparatively new in Canada. Nonetheless, there are a number of existing lawsuits in B.C. and elsewhere in Canada which have been identified as SLAPP suits, and which illustrate the seriousness of the problem. The following is not a comprehensive list:
MacMillan Bloedel v. The Galiano Island Trust Committee:
The Galiano Conservancy Association, a small group of residents of Galiano Island, lobbied its local municipal body, the Galiano Islands Trust Committee, to enact by-laws restricting the subdivision and development of forest lands. This by-law, when enacted, had a large impact on MacMillan Bloedel, a large forest company holding much of the remaining forested area on the island. The company sued the Association, the Committee and three individual trustees of the Committee. The lawsuit was eventually dropped after extensive discovery.
Lougheed Ventures Ltd. v. Carol White et al.:
The community of Mount Pleasant held a referendum on whether to allow the Biltmore Hotel to open a new beer and wine store. Critics of the proposed store distributed a leaflet and spoke at public meetings, and were subsequently sued by the Hotel. The lawsuit was subsequently dropped due to public pressure.
Fletcher Challenge v. Jason Miller et al.:
Protests against logging in the Walbran Valley, on Southern Vancouver Island, lead to a lawsuit being filed by Fletcher Challenge Ltd. But rather than limit the litigation to persons involved in the protests, the company sued community members who had indicated support for the protest, an organisation which built trails in the valley and other individuals who were not directly involved in the protests. At least one individual named in the lawsuit had never been in the Walbran valley. This pattern of suing individuals not actually involved in the alleged wrong is an effective way of hiding the nature of the SLAPP and has been used in lawsuits in the Tsitika, Clayoquot Sound, and Slocan Valley, as well as in lawsuits in Manitoba and Nova Scotia.
Daishowa v. Friends of the Lubicon:
A small environmentalist group from Ontario called Friends of the Lubicon (FoL) began a consumer boycott of the Daishowa Ltd.'s paper products in 1991, following the announcement that the Province of Alberta had granted logging rights to the forestry multinational over lands traditionally used and occupied by the Lubicon Cree Nation. FoL carried on with this campaign for 7 years. During this period Daishowa refrained from logging in the Lubicon area. The company started a law suit in 1995 seeking to enjoin the FoL's boycott and to recover damages for loss business, but they were unsuccessful: Ontario Court (General Division) ruled, among other things, that the actions of FoL were deserved protection in light of the Charter's freedom of expression. Daishowa appealed from this decision to the Ontario Court of Appeal. Finally, before the case was heard by the appellate court (May, 2000) Daishowa advised Friends of the Lubicon that it was abandoning its appeal.
Freedom of Expression in Need of Protection
The mere prospect of a SLAPP suit has a chilling effect and silence public debate. Given the importance of free expression and dialogue in a democracy it should be clear that SLAPPs should be discouraged as far as possible.
Currently the law there are few mechanisms to protect the public from SLAPP suits.
Courts do have the power to throw a frivolous or vexatious lawsuit out of court. However, SLAPP suits are framed as ordinary tort lawsuits, and 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.
Other jurisdictions - a number of states in the U.S., for example - have fought the rise of SLAPP suits with Anti-SLAPP legislation. Such legislation aims first to discourage companies from using SLAPP suits and second to help a SLAPPed citizen to fight the SLAPP suit cheaply and effectively.
A number of innovative legislative provisions is essential to protect freedom of expression. SLAPP legislation might include the following characteristics:
Legislation is needed to protect the right of public participation: Although Freedom of Expression is included in the Charter of Rights and Freedoms, it seems that this right is not protected in the private field. Anti-SLAPP legislation should create a positive right of public participation, which could stand against other private rights.
Courts should identify and dismiss SLAPPs at an early stage of litigation: At an early stage in the litigation the Defendant should be able to demonstrate that the lawsuit affects his or her freedom of expression and have the court consider whether or not the suit is a SLAPP. If the court is satisfied that the lawsuit is aimed at silencing legitimate criticism or strategically punishing those who voice dissent, the lawsuit should be thrown out of court.
Victims of SLAPPs desperately need support: Even with a summary dismissal procedure, fighting a SLAPP suit can be costly and draining. The defendants in the above-mentioned SLAPPs have relied for the most part on self-representation or pro bono legal advice. Legislation should, where possible, provide support for the victims of SLAPP suits, in the form of legal aid other means.
Companies that SLAPP should pay: Rules governing costs can be used effectively to discourage SLAPPs and to compensate the defendants for the difficult and expensive litigation process.
Citizens should be allowed to SLAPP Back: Some jurisdictions, such as New York, have enacted legislation allowing SLAPP defendants to counter-sue the plaintiffs not merely for the costs of litigation but for damages caused by the infringement of freedom of expression rights and for punitive damages.
Conclusion
A Strategic Lawsuit Against Public Participation, or SLAPP, is a lawsuit arising against an individual or organisation for engaging in public debate, for communicating with their elected representatives, government officials or electorate. It has the real and alarming effect of silencing public debate and preventing government from hearing legitimate public concerns.
SLAPP suits are a fast growing phenomenon in Canada, with many people facing such a lawsuit and literally hundreds facing the threat of one. SLAPP suits silences the citizens upon whom our democracy is built and turns the judicial process into a weapon against public dissent.
There is no existing legal remedy against SLAPP suits. New legislation is needed which allows for such lawsuits to be thrown out of court and to be fought effectively, and which penalizes companies which brings such anti-democratic litigation. Democracy does not belong to those who can pay the lawyers.
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SLAPPs are a fast growing phenomenon in Canada, and we need to find out just how widespread they are. If you have any information about lawsuits (or threats of lawsuits) designed to silence public criticism please contact the Environmental Law Centre.
Click here to see Californian anti-SLAPP legislation proposed by an organization of Americans for Legal Reform.
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