Individuals and corporations are increasingly using vexation cases, such as Strategic Lawsuits Against Public Participation (SLAPPs), to shut down public participation. Cases that lack any merit are often filed purely to cause financial harm to individuals and organisations, who have to hire lawyers and engage in costly legal battles to continue their work.[1]
Defamation is a particularly common case launched against communicators and activists. It is often made with the intention of exerting a chilling effect rather than in real pursuit of vindicating reputation or remedying genuine harm. The real objective is not to win the case and obtain damages but rather to drown defendants in lengthy and costly procedures, thereby silencing whatever critical messages they had tried to publish. [2]
Murdered journalist Daphne Caruana Galizia, who was subject to a SLAPP in Malta, was still being posthumously sued for defamation in 2018 (see p.x). Judicial harassment – even when cases are dropped – can have serious effects on those persecuted, with long pre-trial detentions that cause income loss, unemployment, and stigma.
SLAPPS are concerningly common in the USA.[3]The North Dakota Access Pipeline brought a $900 million (USD) lawsuit against Greenpeace and some individual protesters; Greenpeace is currently appealing in a state court. [4] Pipeline company Energy Transfer Partners filed the lawsuit, relying on defamation law and the Racketeering Influenced and Corrupt Organizations Act – a federal statute designed to prosecute mob activity.
Some states have adopted anti-SLAPP legislation – half of all USA states, in fact.[5] Anti-SLAPP laws generally provide a mechanism that allows the defendant, after service of the complaint, to file a motion to strike down or dismiss the complaint as being based upon speech directly related to, and arising from, a matter of public concern.[6]
[1] Greenpeace, 6 Ways Corporate Lawsuits Kill Free Speech (and How to Fight Back!), 9 May 2017, available at https://www.greenpeace.org/international/story/6841/6-ways-corporate-lawsuits-kill-free-speech-and-how-to-fight-back/
[2] ARTICLE 19, Revised Defining Defamation Principles: Background Paper, 2016, available at https://www.article19.org/data/files/medialibrary/38362/Defamation-Principles-Background-paper.pdf
[3] Protect the Protest, Our Cases, 2018, available at https://www.protecttheprotest.org/category/resource-categories/our-cases/
[4] The American Civil Liberties Union, The Dakota Access Pipeline Company is Abusing the Judicial System to Silence Dissent, 1 March 2019, available at https://www.aclu.org/blog/free-speech/rights-protesters/dakota-access-pipeline-company-abusing-judicial-system-silence
[5] Public Participation Project, State Anti-SLAPP Laws, n.d., available at https://anti-slapp.org/your-states-free-speech-protection/
[6] ARTICLE 19, Revised Defining Defamation Principles: Background Paper, 2016, available at https://www.article19.org/data/files/medialibrary/38362/Defamation-Principles-Background-paper.pdf