Gauging the Global Action against SLAPP
SLAPP or Strategic Lawsuit Against Public Participation is a term that was originated by Professor George W.Pring and Penelope Canan in their book titled “SLAPPs: Getting Sued for Speaking Out”. This key term refers to those legal actions or suits that directly affect free speech and the right to petition by curbing any voice that is being raised in favour of promoting a healthy debate on public issues. So, when any lawsuit is filed by powerful agents like corporates, business houses, organizations, etc. against individuals or small organizations who try to speak out on issues of public interest or issues of social significance, with the aim to shunt and silence their voice, such actions are called SLAPP. Thus, the intention of using SLAPP is to harass those subjects who are not socially, economically or politically powerful but wants to speak out openly on public interest issues. By using SLAPP, the individuals voicing out have to bear the brunt of defending baseless suits for numerous years and spending a lot of money on hiring lawyers so as to prove that their voicing out was not malicious but prudent.
As the aim of SLAPP lawsuits is not to access justice but rather to use courtrooms as a weapon of harassment, there are many examples from the past to prove this unfortunate objective. One of the landmark cases comes from the US Supreme Court titled NAACP v. Claiborne Hardware Co. (1982)1 In this case, African-American citizens of Mississippi launched two boycotts against the white merchants in Claiborne county, Mississippi as their demand for racial equality and racial integration did not meet a satisfactory solution, In response to this boycott, the white merchants retaliated and sued the NAACP and those individuals to recover losses caused by the boycott and to ban such future boycott activities. The lower court found the individuals guilty of the tort of malicious interference with the plaintiff’s business, for violating Mississippi statute banning secondary boycotts, and for violating Mississippi’s antitrust statute. However, after years of legal battle, the Supreme Court of the US overruled the order and held that non-violent actions of the individuals were protected under the First Amendment of the Constitution and therefore, “boycotts and related activities to bring about political, social and economic change are political speech, occupying the highest rung of the hierarchy of First Amendment values.”2
County Farms with the state regulators. An action of defamation was brought against the farmers however in return, the farmer filed a countersuit for malicious prosecution under the Anti-SLAPP laws of Nebraska. The jury ordered the decision in favour of the farmers and uphold the counterclaim of farmers under the Anti-SLAPP law. Therefore, Anti-SLAPP laws are now a much-needed tool in order to protect individuals from bullies who try to threaten people from bringing actions against public scrutiny.
What are Anti-SLAPP laws?
Anti-SLAPP laws are those laws which provide a remedy to those individuals or persons who have been a victim of SLAPP suits. These laws are aimed to mitigate and restrict the potential threats of a lawsuit which are intended to intimidate people who are exercising their right to expression and petition. Anti-SLAPP statutes help persons who are sued to make a motion to get the SLAPP case struck on the ground that their speech deals with a matter of public concern. Moreover, these statutes shift the burden on the plaintiff who has filed a lawsuit to show that the odds of getting a decision in their favour are high. The same has to be backed up by legal evidence. If the plaintiff fails to meet the such burden, the suit is dismissed through the provision of Anti-SLAPP laws and rather cost is provided to the defendant for malicious prosecution. Therefore, these laws provide defendants with an opportunity to get malicious lawsuits dismissed quickly on the grounds of lacking merit. Further, this Anti-SLAPP legislation promotes free speech and ensures that individuals exercising this right do not have to suffer from unnecessary litigation.
Anti-SLAPP laws in the USA
In the USA, out of 50 states, 32 states and the District of Columbia have Anti-SLAPP laws. Earlier even Minnesota had Anti-SLAPP laws but the same was held to be unconstitutional and was struck down.3 Every state has unique features in their Anti-SLAPP laws. For example, Colorado allows a defendant to file a special motion to dismiss claims arising from the exercise of the right of petition or free speech in connection with a public issue4 Similarly in Arizona, the exercise of the right to petition is protected, however, it is limited to only where a statement fell within the constitutional protection of free speech, and was either made (1) as part of an initiative, referendum, or recall effort; or (2) in a governmental proceeding, in connection with an issue under consideration or review by any governmental proceeding, and for the purpose of influencing a governmental action.5 Nonetheless, in Kentucky which adopted a version of the Uniform Public Expression Protection Act (“UPEPA”) (model Anti-SLAPP law), the protection applies to suits based on a person’s exercise of speech, press, assembly, petition, and association rights “on a matter of public concern, therefore, having a broader scope6 Thus, each state has its own elements that in total ensure the freedom of expression and petition under the garb of the First Amendment to the Constitution.
Anti-SLAPP laws in the UK
In the UK, there are no Anti-SLAPP laws and hence, no protection is given when a SLAPP lawsuit is filed. However, recently the Solicitors Regulation Authority, a legal regulator for solicitors in England and Wales, has issued a warning to the lawyers who are involved in SLAPP and using it to threaten individuals with meritless litigation. In the warning notice, it was highlighted that solicitors “should not be misusing litigation to prevent legitimate scrutiny from journalists, academics and campaigners”. Additionally, it was also warned that when solicitors cross the line into SLAPPs, action would be taken as they are matters of concern which would likely result in regulatory action.7 Similarly, the Justice Secretary had also announced to have a three-stage test which would help to tackle any early-stage intimidatory legal actions that are in the colour of SLAPPs. In the three-stage test, the first stage would gauge if the lawsuit filed is against journalistic activity that is in the public interest. The second test would then examine if there is evidence of abuse of process and finally the third stage would consider whether the case has a realistic prospect of success. Thus, although there is no legal framework available for Anti-SLAPP laws, the guidance is now aiming to have directed efforts in this area.
Anti-SLAPP laws in Canada
In Canada, Ontario became the first province in 2015 to have an Anti-SLAPP law enacted through the Courts of Justice Act. The aim of this law was to prevent the chilling effect of SLAPP. Section 137 of the Act allows defendants to bring a motion to have a proceeding dismissed on the basis of a two-stage test. In this test, the first stage deals with whether the proceeding arises from an expression that relates to a matter of public interest”. This is an initial threshold burden that the defendant has to discharge.
Once the same burden has been discharged, the onus then shifts to the plaintiff to show why the proceeding should not be dismissed. Therefore, now the plaintiff has to prove that the case has substantial merit and the defendant has no valid defence in the proceedings. At the same time, the public interest hurdle requires the plaintiff to satisfy the judge that: “the harm likely to be or have been suffered by the plaintiff as a result of the defendant’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression. Only after these hurdles have been crossed by the plaintiff, the suit is allowed to continue. Even recently the Supreme Court of Canada while interpreting this legislation held that ““ the crux” of the analysis on an anti-SLAPP motion remains the same; that is, judges will consider “what is really going on in the particular case before them” and assess whether it is one where litigation is being used strategically to silence, or as a genuine attempt to protect one’s reputation”.8 Other than Ontario, the British Columbia and Quebec provinces also have Anti-SLAPP laws.
The suppression of the voices of an individual who is trying to unearth public interest issues would be the biggest violation and thus in order to protect such freedom, Anti-SLAPP laws have become the need of the hour. There has been a trend of using SLAPP in matters of Sexual Harassment, environmental issues, civil rights matters, educational institutions, etc. Powerful institutions try to use courts as their weapon of silencing the voices however, it has the duty of the judiciary and the legislature to ensure that the trust in these institutions is always safeguarded and such SLAPP actions should be tackled with heavy hands. Some jurisdictions which have incorporated Anti-SLAPP provisions can see a fall in SLAPP lawsuits and therefore, this can be an example for other states to implement Anti-SLAPP laws so that citizens of that jurisdiction can be vocal about issues related to public importance and bullies cannot interfere with such privileged and fundamental rights.