Strategic lawsuit against public participation
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A Strategic Lawsuit Against Public Participation ("SLAPP") is a form of litigation filed by a large organization or in some cases an individual plaintiff, to intimidate and silence a less powerful critic by so severely burdening them with the cost of a legal defense that they abandon their criticism. The acronym was coined in the 1980s by University of Denver professors Penelope Canan and George W. Pring. One marker of a SLAPP suit is whether the costs outweigh the claimed damages by a large amount, for instance, damages of a few hundred dollars and costs in the tens of thousands. Lawyers are thought to be particularly conflicted in SLAPP suits, since a marginal case can lead to high legal charges, and they are encouraged to run up costs by their clients.
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[edit] SLAPPs by location
[edit] 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 came 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 It was repealed in August, 2001.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.
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.
[edit] 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.
[edit] New Zealand
The first noteworthy case in New Zealand was a SLAPP served by Nelson lawyers Pitt and Moore on the environmental lobby group Native Forest Action in 1997. It was served during a direct action campaign against the logging of native forests by Timberlands 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. [1]
- 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. [2]
- In 2007 Solid Energy also placed a court injunction on the Save Happy Valley Campaign for publishing a spoof environmental report. [3]
[edit] South Africa
AngloPlatinum, 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.[citation needed]
[edit] United States
[edit] California
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.
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 against a business 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.
[edit] Other States
At least 24 other states and one territory have also enacted some form of legal protections against SLAPPs. These are Arkansas, Delaware, Florida, Georgia, Guam, Hawaii, Indiana, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Missouri, Nebraska, Nevada, New Mexico, New York, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee, Utah, Washington, and West Virginia.
[edit] Federal
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 and most states operate 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.
[edit] Examples of SLAPPs
Oprah Winfrey, as a defendant, won a SLAPP filed against her by the cattle industry (Cf. Howard F. Lyman's Mad Cowboy, 14-20) and Barbra Streisand, as a plaintiff, lost a SLAPP she filed against an aerial photographer. Streisand v. Adelman Et al, in California Superior Court; Case SC077257 [1][2]
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 [3]
The "Gunns 20" case in Tasmania is commonly considered an example of a SLAPP.
[edit] Further reading
- 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
[edit] See also
- Spamigation
- Barratry
- Chilling effect
- Cease and desist
- Scientology and the legal system
- Varian v. Delfino
- Vexatious litigation
- Media transparency
[edit] External links
- Survival Guide for SLAPP Victims from the California Anti-SLAPP Project
- Activist Fight Back! from the [4]
- Tenants Sound Off; Landlord Files Suit
- Anti-SLAPP Law in Massachusetts
- PDF materials for California suits
- 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
- [5] SLAPP Resource Center
