What are "SLAPPs"?

What are "SLAPPs"?

"SLAPP" stands for "Strategic Lawsuits Against Public Participation". SLAPPs are legal actions (usually defamation actions) launched for the primary purpose of shutting down criticism, and without a strong cause of action. The plaintiff's goal in a SLAPP is not to win the lawsuit, but is rather to silence a critic by instilling fear of large legal costs and the spectre of large damage awards. Despite their right to free speech, critics may be frightened into silence B e.g., taking down websites or comments made online - if they are threatened with a defamation-based SLAPP.

What are "CyberSLAPPs"?

CyberSLAPPs are simply SLAPPs launched in the online world. Aside from the above issues, they also raise issues relating to anonymity. Internet users are not easily identifiable (as seen in the recent recording industry file sharing cases). Organizations wishing to discover the identities of their online critics may therefore attempt to launch defamation SLAPPs whose only goal is to obtain the other party's name. This is of great concern since the linking of an Internet identifier (such as an e-mail address) to a particular person will mean that every message that person has ever posted under that identifier becomes known to have originated from them. This can be a problem as many lawful forms of speech, if revealed, can cause harm to the poster. Examples include people seeking advice on marital problems, teenage problems, depression, medical or financial issues. In such cases, however, the court can order that identifying information provided to plaintiffs be kept confidential.

How are governments reacting to SLAPPs?

There are already extensive laws in the United States and other countries to try to prevent SLAPPs. In Canada, Quebec is presently the only province with an anti-SLAPP law. It is highly probable that laws will soon be adopted in the rest of Canada.

In British Columbia a law was adopted in 2001 but then later repealed in the same year when a different government was elected. During its short life span, this law permitted people to make an application for summary dismissal of cases on the basis that they were SLAPPs. If the case was deemed to be a SLAPP, the Court could award reasonable costs and expenses as well as punitive damages. It also permitted the court, if the alleged defamatory statement was deemed to be “public participation”, to order that a security be paid by the plaintiff for expenses and punitive or exemplary damages.

The Quebec law adopted in June 2009 modifies its Code of Civil Procedure to better address SLAPPs. The modifications to the Code permit a summary dismissal of cases deemed to be SLAPPs. Like the repealed British Columbia law, the Quebec law permits the court to ask the plaintiff for security and to award costs and expenses as well as punitive damages. Also, once the defendant makes a prima facie case that the lawsuit is abusive, the burden shifts to the plaintiff to prove that the case is legitimate. If a SLAPP is suspected, the Court can also set specific rules for the proceedings so as reduce the effects of the suspected SLAPP on the defendant. The object of this law is to impose costs and sanctions on plaintiffs who would seek to use the courts to silence critics.

In December 2008, a private member’s Bill was introduced in the Ontario Legislative Assembly and remains on its first reading. Bill 138, the Protection of Public Participation Act is essentially the same as the repealed B.C. law.

Resources

• eLawNetwork updated daily; contains links to Internet related caselaw, legislation and news articles. Click on the "defamation" link on the front page.
• Chilling Effects: A joint project of the Electronic Frontier Foundation and renowned universities across the USA, this website seeks to help users understand the protection that the First Amendment of the U.S. Constitution gives to online activities. They do not have a specific page on defamation, though a search on their site will turn up useful links. This site is mentioned because its focus is closely related to this FAQ, i.e., the abuse of the legal system to squelch free speech.
• The American Civil Liberties Union is an organisation devoted to defending the US Constitution's first ten amendments, collectively known as the "Bill of Rights". Though they do not have a specific page, a search for "defamation" on their website will turn up various legal briefs, cases and other pertinent materials.
• The Electronic Frontier Foundation is a nonprofit US group devoted to protecting digital rights. A search for "defamation" on their website will turn up various useful cases, policy papers and other pertinent materials.
• The California Anti-SLAPP Project is a group working to defeat the effectiveness of SLAPPs. While it is focused on Californian issues, it contains lots of useful material, such as the legislation of various other states, and the "Survival Guide for SLAPP victims".
• Libel and Slander Act, Ontario
• Bahlieda v. Santa, 2003 CanLII 12856 (ON S.C.)
• Bahlieda v. Santa, 2003 CanLII 2883 (ON C.A.)
• Bangoura v. Washington Post, 2004 CanLII 26633 (ON S.C.)
• Bangoura v. Washington Post, 2005 CanLII 32906 (ON C.A.)
• Dow Jones & Company Inc v Gutnick, [2002] HCA 56
• PIAC report on SLAPPS: "Corporate Retaliation Against Consumers: The Status of Strategic Lawsuits Against Public Participation (SLAPPs) in Canada" (Sept. 2004)
• Barrick Gold Corporation v. Lopehandia, 2004 CanLII 12938 (ON C.A.)
• (Halton Hills (Town) v. Kerouac, 2006 CanLII 12970 (ON S.C.))
• (Prud'homme v. Prud'homme, [2002] 4 S.C.R. 663 at para. 36)
• (Crookes v. Wikimedia Foundation Inc. 2008 CanLII 1424 (BCSC))
• (WIC Radio Ltd. v. Simpson, 2008 SCC 40)
• (Cusson c. Quan, 2007 CanLII 771 (ONCA))
• (Janssen-Ortho Inc. v. Amgen Canada Inc., 2005 CanLII 19660 (ON C.A.))