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.

Contents

[edit] SLAPPs by location

[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. More recently 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]

[edit] Canada

The first lawsuit of its kind in Canada was launched in 2006 when the Toronto Port Authority (a quasi-Federal Government agency) started a lawsuit against a neighbourhood group - Community Air. The group opposes the Port Authority's support for expanded service at the downtown Toronto City Centre Airport. The suit claims that the agency and its executive board has been defamed by comments posted on the advocacy groups website. The lawsuit is (as of July 2006) yet to go to trial. The trial should be a test of Canadian laws in regards to free speech.

For an explanation (in French) of a recent SLAPP in Quebec see [2]

[edit] South Africa

AngloPlatinum, the worlds largest Platinum Miner and a subsidiary of Anglo American PLC, the worlds 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.

[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]

[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

[edit] External links

[edit] References

  1. ^ Streisand Sues to Suppress Free Speech Protection
  2. ^ Streisand’s Lawsuit to Silence Coastal Website Dismissed
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