Strategic lawsuit against public participation

A Strategic Lawsuit Against Public Participation ("SLAPP") is a lawsuit or a threat of lawsuit that is intended to intimidate and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition. Winning the lawsuit is not necessarily the intent of the person filing the SLAPP. The plaintiff's goals are accomplished if the defendant succumbs to fear, intimidation, mounting legal costs or simple exhaustion and abandons the criticism. A SLAPP may also intimidate others from participating in the debate.

According to New York Supreme Court Judge J. Nicholas Colabella, "Short of a gun to the head, a greater threat to First Amendment expression can scarcely be imagined." A number of jurisdictions have made such suits illegal, provided that the appropriate standards of journalistic responsibility have been met by the critic.

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." It has since been defined more broadly to include suits about speech on any public issue.

Jurisdictional variations and history

Canada

One of the first cases in Canada to deal with a SLAPP was Fraser v. Saanich (see [1999] B.C.J. No. 3100 (B.C. S.C.)) (QL), where the British Columbia Supreme Court struck out the claim of a hospital director against the District of Saanich, holding that it was a meritless action designed to silence or intimidate the residents who were opposed to the plaintiff’s plan to redevelop the hospital facilities.

Following the decision in Fraser v. Saanich, the Protection of Public Participation Act went into effect in British Columbia in April, 2001. It was repealed in August, 2001.

The first case to discuss and apply the PPPA was Home Equity Development v. Crow, (see [2002] B.C.J. No. 1805 (B.C. S.C.)) (QL). The defendants application to dismiss the action against them was dismissed. The defendants failed to meet the burden of proof required by the PPPA, that the plaintiffs had no reasonable prospect of success. Many felt that the plaintiffs did not bring their action for an improper purpose, and the suit did not inhibit the defendants in their public criticism of the particular project.

In Ontario, the decision in Daishowa v. Friends of the Lubicon (see [1996] O.J. No. 3855 Ont. Ct. Gen. Div.)) (QL) was also instructive on SLAPP’s. A motion brought by the corporate plaintiff Daishowa to impose conditions on the defendant Friends of the Lubicon Indian Band that they would not represent Daishowa’s action as a SLAPP was dismissed.

Québec's Justice Minister, Jacques Dupuis, has proposed an anti-SLAPP bill on June 13. The proposal will be voted on during the Fall 2008 sitting of the National Assembly[1]

Some political libel and forum shopping incidents, both common in Canada, have been called SLAPP suits, because such suits load defendants with costs of responding in unfamiliar jurisdictions or at times (typically elections) when they're extremely busy and short of funds. Both types of suits are almost unique to Canada, so there is little concern nor examination of whether political subject matter or remote forums are a clear indicator of SLAPP.

United States

The U.S. state of California enacted Code of Civil Procedure § 425.16 in 1992, a statute intended to prevent the misuse of litigation in SLAPP suits. It provides for a special motion which a defendant can file at the outset of a lawsuit to strike a complaint where the complaint arises from conduct that falls within the rights of petition or free speech. The statute expressly applies to any writing or speech made in connection with an issue under consideration or review by a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, but there is no requirement that the writing or speech be promulgated directly to the official body. It also applies to speech in a public forum about an issue of public interest and to any other petition or speech conduct about an issue of public interest.

The filing of an anti-SLAPP motion prevents the plaintiff from amending the complaint and stays all discovery. If the special motion is denied, the filing of an appeal immediately stays the trial court proceedings as to each challenged cause of action. Defendants prevailing on an anti-SLAPP motion (including any subsequent appeal) are entitled to a mandatory award of reasonable attorney’s fees. More than 200 published court opinions have interpreted and applied California's anti-SLAPP law.

California's Code of Civil Procedure § 425.17 corrects abuse of the anti-SLAPP statute (CCP § 425.16). Signed into law on September 6, 2003, this statute prohibits anti-SLAPP motions in response to certain public interest lawsuits and class actions, and actions that arise from commercial statements or conduct. Section 425.18, signed into law on October 6, 2005, was enacted to facilitate SLAPP victims in recovering their damages through a SLAPPback (malicious prosecution action) against the SLAPP filers and their attorneys after the underlying SLAPP has been dismissed.

At least 25 other states and one territory have also enacted statutory protections against SLAPPs. These are Arkansas, Arizona, Delaware, Florida, Georgia, Guam, Hawaii, Illinois, Indiana, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Missouri, Nebraska, Nevada, New Mexico, New York, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee, Utah, and Washington. In Colorado and West Virginia, the courts have adopted protections against SLAPPs.

There is no direct equivalent of a SLAPP statute in U.S. federal law; the closest available remedy is the Noerr-Pennington doctrine in federal antitrust law. According to Canan and Pring, this situation is probably because of differences in pleading requirements between federal and state civil procedure.

California operates under a "code pleading" regime, in which a complaint must be quite specific as to the underlying factual contentions. Thus, there is less of a risk that an anti-SLAPP motion will kick out legitimate cases, because the burden is already on the plaintiff to research the factual foundation of their complaint before filing suit. In contrast, federal civil procedure operates under a more recent "notice pleading" regime, in which a complaint need only include a "short and plain" notice of the claims to be asserted. This system offers plaintiffs the advantage of suing first and discovering the underlying facts later without having to worry about statutes of limitations (which is still a major problem with code pleading). But notice pleading also has a severe disadvantage in that allowing the use of an anti-SLAPP motion would result in the dismissal of many legitimate cases.

However, the U.S. Court of Appeals for the Ninth Circuit has allowed California litigants to use their state's special motion in federal district courts located in California, in cases where the court is hearing at least one California state law claim through the doctrine of supplemental jurisdiction.

Examples of SLAPPs

Australia

• TELSTRA CORPORATION LIMITED -V- MULLINS [2001]. Mullen spoke out about Telstra's creative accounting. Telstra responded with a SLAPP alleging Mullens was indebted to it but could produce no evidence to support its claim.
• 2CLIX -V- Simon Wright. Forum postings express users' dissatisfactions and frustrations with 2Clix software, the company itself and its policies, from allegedly dodgy sales practices and reports of problems with software functionality and performance to complaints that 2Clix quickly locked customers out of their business records for nonpayment of maintenance charges, were the basis for the action against Wright. The action was widely reported as a SLAPP lawsuit trying to suppress negative publicity, and was quickly discontinued.
• Gunns 20 - Gunns Limited v Marr & Ors, is a current case, filed by Gunns (a major forestry company with main office in Tasmania) in the Supreme Court of Victoria, against 20 individuals and organizations for over 7.8 million dollars.

Europe

• In February 2005 the European Court of Human Rights found that Helen Steel and David Morris did not receive a fair trial while defending a libel action brought by McDonald's in the United Kingdom. In what became known as the McLibel case, the two had been found guilty in 1994 of libelling the company in a leaflet. The court ruled that, because legal aid is not available to libel defendants, their right to freedom of expression under the European Convention on Human Rights had been violated. They were awarded £24,000 damages, plus costs.

New Zealand

• Native Forest Action received a SLAPP in 1997 on behalf of Timberlands West Coast Limited to end its campaign of direct action against the logging of native forests on the West Coast.

Other examples include:

• In 2004 the Scoop news website was served a SLAPP by KFC lawyers due to their link to a spoof website operated by Greenpeace New Zealand. [2]
• In 2005 Solid Energy sought to recover costs from Buller Conservation Group and Forest and Bird for an Environment Court hearing opposing a new open cast coal mine on the West Coast. [3]
• In 2007 Solid Energy also placed a court injunction on the Save Happy Valley Campaign for publishing a spoof environmental report. [4]

South Africa

• Anglo Platinum, the world's largest platinum miner and a subsidiary of Anglo American PLC, the world's second largest mining corporation, filed SLAPPs against a South African public interest lawyer Richard Spoor, who represented indigenous communities affected by platinum mining on tribal land. The actions include an application in the High Court for a so-called gagging order, ostensibly to prevent him further injuring the good name and reputation of the corporation, the lodging of complaints with the Law Society of unprofessional behaviour and the lodging of a civil action for damages for some $500,000.00. AngloPlatinum also obtained an ex parte (without notice) order interdicting two tribal chiefs from interfering with their mining operations and had them arrested on charges of intimidation and trespass. Subsequently, followers of the two tribal chiefs were shot, beaten and arrested for protesting the mine's presence on tribal land.

US

• Oprah Winfrey, as defendant, won a SLAPP filed against her by the cattle industry.
• Barbra Streisand, as plaintiff, lost a SLAPP she filed against an aerial photographer involved in the California Coastal Records Project. Streisand v. Adelman et al, in California Superior Court; Case SC077257 See Streisand effect
• Kim Shewalter and other neighborhood activists, as defendants, won a SLAPP brought by apartment building owners because of the defendants' protest activities. Coltrain v. Shewalter
• Barry King and another Internet poster, as defendants, won a SLAPP brought by corporate plaintiffs based on critical posts on an Internet financial message board. Global Telemedia v. Does
• Kathi Mills won a SLAPP filed against her by the Atlanta Humane Society, Atlanta Humane Society v. Mills, in Gwinnett County (Georgia) Superior Court; case 01-A-13269-1
• The Bank Julius Baer vs. Wikileaks lawsuit resulted in an injunction against Dynadot forcing it to "lock the wikileaks.org domain name", although the case was later dropped.

See also

• Spamigation
• Barratry
• Chilling effect
• Cease and desist
• Scientology and the legal system
• Varian v. Delfino
• Vexatious litigation
• Media transparency
• Lawfare
• Public participation

External links

• George W. Pring and Penelope Canan, SLAPPs: Getting Sued for Speaking Out (Temple University Press, 1996). ISBN 1-56639-369-8
• Michelangelo Delfino and Mary E. Day, Be careful who you SLAPP (MoBeta Pub, 2002). ISBN 0-9725141-0-4
• Ralph Nader and Wesley J. Smith, No Contest: Corporate Lawyers and the Perversion of Justice in America (Random House, 1998). ISBN 0-375-75258-7
• Survival Guide for SLAPP Victims from the California Anti-SLAPP Project
• Activist Fight Back! from the [5]
• Tenants Sound Off; Landlord Files Suit
• Anti-SLAPP Law in Massachusetts
• PDF materials for California suits
• SLAPP Telstra — A Telstra (Australian) SLAPP case.
• Varian v. Delfino — A California SLAPP case.
• SLAPPs—Strategic Lawsuits Against Public Participation: Coming to a Controversy Near You — Australian article, includes history of SLAPPs
• 'McLibel' pair win legal aid case on BBC news website
• U.S. judge fines major law firm for filing frivolous SLAPP suit(news story, Aug 2005).
• SLAPP suit in Minnesota against a photographer who spoke up about copyright violation by a corporation
• [6] SLAPP Resource Center
• Florida SLAPP Suit, (Veranda Partners v. Larry Giles) – Orlando Sentinel Mar 2007 – Resident: Suit filed to silence criticism
• Oklahoma SLAPP Suit, (Omega World Travel v. MummaGraphics, Inc.) – SLAPPSUIT.com Apr 2007 – Documentary Film.