Backchecks and SLAPP shots: Protecting public debate

With corporate activity expanding, provincial government must enact legislation to protect public debate from thin-skinned, deep-pocketed developers

There’s been a lot of controversy around the recent lawsuit filed by former Premier Danny Williams and mining company Alderon (which added Williams to its corporate board earlier this year) against Sierra Club Canada, Sierra Club spokesperson Bruno Marcocchio, and local blogger Brad Cabana. According to CBC reports, the lawsuit alleges these outspoken opponents of the Muskrat Falls project made defamatory statements about Williams and Alderon during heated debate on the subject on a VOCM open line program.

Aside from the spirited public debate about whether the comments were defamatory or not, the question of whether investors and developers should be allowed to sue over comments made in the course of heated public debate raises an important issue that our politicians need to take action on. And it’s not just activists and community groups who should be concerned: Geoff Meeker’s recent column on CBC’s coverage of the lawsuit raises important questions about the impact fear of lawsuit can have on media treatment of public issues. And these concerns are only going to grow in significance in a province which is becoming so heavily dominated by the corporate energy industry.

A SLAPP against public debate

According to CBC, Cabana has described the lawsuit against him as a ‘SLAPP’ suit. It’s a relatively new phenomenon for this province, but what are known as SLAPPs have become a major issue in other parts of the U.S. and Canada. SLAPP (Strategic Lawsuit Against Public Participation) is a phrase used to refer to lawsuits – often launched by high-profile investors, political actors or corporations – against individuals or lobby groups that are speaking out on important public issues (and opposing the suing party). SLAPPs are characterized by three major dimensions:

1) They serve the function of stifling public debate and public participation, often around corporate development projects. Anti-SLAPP activists observe this is done not only by firing heavy-handed lawsuits against those people who are speaking out against a project, but also by sending an implicit warning that the corporate actors are willing to sue others who speak out. The effect of this is to chill public debate by intimidating the public into not speaking out and thus keep them from exercising their democratic rights, out of fear of a lawsuit.

The effect of this is to chill public debate by intimidating the public into not speaking out…

2) They’re characterized by skewed power relations. Corporate legal teams – who have lots of money – sue community groups or private individuals, who do not. The effect is that instead of debating issues on equal terms, rich people use their money to silence and intimidate average citizens. Such disproportionate tactics might be considered a form of corporate bullying, but fundamentally they are a way of dodging the real issues and accountability toward the people and communities affected by corporate projects.

3) According to anti-SLAPP activists, it often doesn’t really matter to those filing the lawsuit, whether they’ll win or not. They’ve got money, and the people they’re suing do not. They can drive private individuals or community groups into bankruptcy, ruin their lives and finances, and prevent them from carrying out the important public work that they do. Lawsuits can often be dragged out for years, costing the defendants enormous sums of money to defend themselves – money they do not have. And even if the corporate actors lose in the end, they will have successfully tied up the individuals or community groups – their time, energies and money – for years, stifling their ability to concentrate on fighting the development project. Sometimes corporate actors lose SLAPPs (actually, in almost 80 per cent of cases according to one U.S. study), but spending a few million on dragging out a court case against a community group or a private activist is often a worthwhile investment if it means a multi-billion-dollar project is able to proceed with greater ease. In other cases the defendants are unable to afford the costs of defending themselves and are forced to sign settlement agreements (which sometimes contain conditions restricting their ability to engage in further debate on the public issue).

…spending a few million on dragging out a court case against a community group or a private activist is often a worthwhile investment if it means that a multi-billion-dollar project is able to go ahead.

There are many examples of such cases in Canada, but mostly from larger provinces such as B.C. and Ontario. In 2010, for example, a developer in Big Bay Point Ontario sued a community group that was opposing its plans to build a resort and marina on their shores. The chilling effect of this phenomenon became apparent when Ontario lawyers were subsequently warned by their insurer to think twice about representing public interest groups since they could be targets of SLAPPs.

SLAPPs are an abuse of the principles underlying our legal system, pure and simple. They exploit the legal system for corporate profit and stifle individuals’ democratic rights. Defamation suits arising from debate on public issues threatens free public debate and represents a serious problem when it comes to holding corporations and wealthy investors to account over development projects that will affect entire communities (or provinces).

Fighting back through legislation

They’ve become such a problem that at least 28 U.S. states have enacted laws against them. So have some Canadian provinces. The B.C. provincial government enacted an anti-SLAPP law – the Protection of Public Participation Act – in 2001 (but the Liberals repealed it later that year following a provincial election). Quebec adopted an anti-SLAPP law in 2009. SLAPPs have also been front and centre in Ontario, where the provincial Auditor General issued a report in 2010 highlighting SLAPPs as a serious problem in that province. Dozens of municipalities have passed resolutions calling on Ontario to adopt an anti-SLAPP law and the government is currently reviewing the matter.

What does an anti-SLAPP law look like? Well, they vary, depending on how committed the particular jurisdiction is to protecting the right to public participation and public debate. Essentially, anti-SLAPP laws enable an individual or organization that is being sued to apply to the court to dismiss the lawsuit out of hand on the basis that it is a SLAPP suit designed to stifle their ability to engage in public debate about an important public issue. Such applications to dismiss SLAPP suits are often fast-tracked through the courts in order to prevent the offending [suing] party from doing what it’s trying to do – intimidate and tie up the activist or community group they are suing. Anti-SLAPP laws usually ensure that defendants don’t wind up facing legal costs for defending themselves, and often levy stiff fines against those found guilty of filing SLAPPs. Sometimes, if a judge determines the issue in dispute is an important public issue and that it is possible a SLAPP might be in play, the onus is shifted to the plaintiff to prove that they’re not engaging in a SLAPP, and also that their alleged defamation outweighs the need for public debate on the issue. Existing laws already allow for all these things, of course, but it can be convoluted, time-consuming and costly for the average citizen to defend themselves. The point of anti-SLAPP laws are to provide a quick, easy and straightforward process for such cases. In all circumstances, of course, if a judge rules that the plaintiffs have a legitimate concern and that public debate and public participation are not being threatened, then the plaintiffs can continue with their case.

…the provincial government seriously needs to enact legislation to protect the right to public debate and public participation…

The quality and effectiveness of anti-SLAPP laws vary considerably from jurisdiction to jurisdiction. Opponents argue that the law already contains protections against abusive, malicious or frivolous lawsuits. Supporters, however, point out that anti-SLAPP legislation is important because it provides a clear name and process for a growing phenomenon: the use of lawsuits to stifle and intimidate public debate.

Furthermore, anti-SLAPP advocates argue that all work on development projects must be frozen while SLAPP suits stemming from those projects are dealt with. They argue that free public debate cannot take place while the public is worried about facing lawsuits. An anti-SLAPP law like that would mean that in this case, all movement on the Muskrat Falls deal would be frozen until the Williams-Alderon lawsuit is dealt with and the legitimacy of the allegations (or lack thereof) is established.

Speaking our minds freely, openly and honestly has long been a cherished characteristic of our culture here in Newfoundland and Labrador. We love heated debates and we expect that those who choose to engage in public debates and public life are willing to take the knocks which will inevitably ensue. But with corporate activity growing in this province, it is likely we will see increased pressure from those with the money to do so, to move public discourse from the realm of free debate to that of private litigation.

What is becoming clear, as more lawsuits and threats of lawsuits begin to arise from corporate development activity in this province, is that the provincial government seriously needs to enact legislation to protect the right to public debate and public participation against the possibility of SLAPPs from lawsuit-prone corporations and wealthy developers.

According to CBC, Brad Cabana has already described the lawsuit against him and Sierra Club as a SLAPP. Is it? Well, that’s the sort of question a judge could be called upon to answer – if we had an anti-SLAPP law in this province.

It’s time for our provincial government to bring in anti-SLAPP legislation before corporate lawsuits get out of hand and public debate goes the way of the Upper Churchill profits Dodo.

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