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Strategic lawsuit against public participation

Strategic lawsuit against public participation

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A strategic lawsuit against public participation (SLAPP) is a lawsuit
Lawsuit
A lawsuit or "suit in law" is a civil action brought in a court of law in which a plaintiff, a party who claims to have incurred loss as a result of a defendant's actions, demands a legal or equitable remedy. The defendant is required to respond to the plaintiff's complaint...

 that is intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition.
The typical SLAPP plaintiff does not normally expect to win the lawsuit. The plaintiff's goals are accomplished if the defendant succumbs to fear, intimidation, mounting legal costs or simple exhaustion and abandons the criticism. A SLAPP may also intimidate others from participating in the debate. A SLAPP is often preceded by a legal threat
Legal threat
A legal threat is a statement by a party that it intends to take legal action on another party, generally accompanied by a demand that the other party take an action demanded by the first party or refrain from taking or continuing actions objected to by the demanding party.-Nature of legal...

. The difficulty, of course, is that plaintiffs do not present themselves to the Court admitting that their intent is to censor, intimidate or silence their critics. Hence, the difficulty in drafting SLAPP legislation, and in applying it, is to craft an approach which affords an early termination to invalid abusive suits, without denying a legitimate day in court to valid good faith
Good faith
In philosophy, the concept of Good faith—Latin bona fides “good faith”, bona fide “in good faith”—denotes sincere, honest intention or belief, regardless of the outcome of an action; the opposed concepts are bad faith, mala fides and perfidy...

 claims.

SLAPPs take various forms but the most common is a civil suit for defamation, which in the English common law tradition (used throughout the English speaking world) is a tort
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...

. The common law of libel dates to the early 17th century and (unusual in English law) is reverse onus
Reverse onus
A reverse onus clause is a provision within a statute that shifts the burden of proof on to the individual specified to disprove an element of the information. Typically, this provision concerns a shift in burden onto a defendant in either a criminal offence or tort claim...

, meaning, once accused, the defendant is presumed guilty until they can prove innocence. While various abusive uses of this law including political libel
Political libel
The criminal statutes protecting nobility from criticism in 16th and 17th century England eventually evolved into various categories of political libel . Cases of political libel and eventually damages actions were handled by the infamous Star Chamber until its abolition in 1641...

 (criticism of the political actions or views of others) have ceased to exist in most places but persist in some jurisdictions (notably British Columbia
British Columbia
British Columbia is the westernmost of Canada's provinces and is known for its natural beauty, as reflected in its Latin motto, Splendor sine occasu . Its name was chosen by Queen Victoria in 1858...

 and Ontario
Ontario
Ontario is a province of Canada, located in east-central Canada. It is Canada's most populous province and second largest in total area. It is home to the nation's most populous city, Toronto, and the nation's capital, Ottawa....

) where political views can be held as defamatory. A common feature of SLAPP suits is forum shopping
Forum shopping
Forum shopping is the informal name given to the practice adopted by some litigants to get their legal case heard in the court thought most likely to provide a favorable judgment...

 wherein plaintiffs find favourable courts that will permit claims that the court in which the defendant (or sometimes plaintiffs) live, will not.

Other widely mentioned elements of a SLAPP are the actual effectiveness at silencing critics, the timing of the suit, inclusion of extra or spurious defendants (such as relatives or hosts of legitimte defendants), inclusion of plaintiffs with no real claim (such as corporations that are affiliated with legitimate plaintiffs), making claims that are very difficult to disprove or rely on no written record, ambiguous or deliberately mangled wording that lets plaintiffs make spurious allegations without fear of perjury
Perjury
Perjury, also known as forswearing, is the willful act of swearing a false oath or affirmation to tell the truth, whether spoken or in writing, concerning matters material to a judicial proceeding. That is, the witness falsely promises to tell the truth about matters which affect the outcome of the...

, refusal to consider any settlement (or none other than cash), characterization of all offers to settle as insincere, extensive and unnecessary demands for discovery, attempts to identify anonymous or pseudonymous
Anonymity
Anonymity is derived from the Greek word ἀνωνυμία, anonymia, meaning "without a name" or "namelessness". In colloquial use, anonymity typically refers to the state of an individual's personal identity, or personally identifiable information, being publicly unknown.There are many reasons why a...

 critics, appeals on minor points of law, demands for broad rulings when appeal is accepted on such minor points of law, and attempts to run up defendants' costs even if this clearly costs more to the plaintiffs.

History


The acronym was coined in the 1980s by University of Denver
University of Denver
The University of Denver is currently ranked 82nd among all public and private "National Universities" by U.S. News & World Report in the 2012 rankings....

 professors Penelope Canan and George W. Pring.

The term was originally defined as "a lawsuit involving communications made to influence a governmental action or outcome, which resulted in a civil complaint or counterclaim filed against nongovernment individuals or organizations on a substantive issue of some public interest or social significance." The concept originators later dropped the notion that government contact had to be about a public issue to be protected by the Right to Petition
Right to petition in the United States
In the United States the right to petition is guaranteed by the First Amendment to the federal constitution, which specifically prohibits Congress from abridging "the right of the people...to petition the Government for a redress of grievances."...

 the Government as provided in the First Amendment. It has since been defined less broadly by some states and more broadly in one state (California) where it includes suits about speech on any public issue.


The original conceptualization proffered by Canan and Pring emphasized the right to petition as protected in the United States under the US Constitution's specific protection in the First Amendment's fifth clause. It is still definitional: SLAPPs refer to civil lawsuits filed against those who have communicated to government officialdom (in its entire constitutional apparatus). The Right to Petition granted by Edgar the Peaceful, King of England in the 10th century, antedates the Magna Carta
Magna Carta
Magna Carta is an English charter, originally issued in the year 1215 and reissued later in the 13th century in modified versions, which included the most direct challenges to the monarch's authority to date. The charter first passed into law in 1225...

 in terms of its significance in the development of democratic institutions. As currently conceived, the right claims that democracy cannot function if there are, or if interest groups can erect, barriers between the governed and the governing.

According to New York Supreme Court
New York Supreme Court
The Supreme Court of the State of New York is the trial-level court of general jurisdiction in thestate court system of New York, United States. There is a supreme court in each of New York State's 62 counties, although some smaller counties share judges with neighboring counties...

 Judge J. Nicholas Colabella, "Short of a gun to the head, a greater threat to First Amendment expression can scarcely be imagined." A number of jurisdictions have made such suits illegal, provided that the appropriate standards of journalistic responsibility have been met by the critic.

Canada


Some political libel
Political libel
The criminal statutes protecting nobility from criticism in 16th and 17th century England eventually evolved into various categories of political libel . Cases of political libel and eventually damages actions were handled by the infamous Star Chamber until its abolition in 1641...

 and forum shopping
Forum shopping
Forum shopping is the informal name given to the practice adopted by some litigants to get their legal case heard in the court thought most likely to provide a favorable judgment...

 incidents, both common in Canada, have been called SLAPP suits, because such suits load defendants with costs of responding in unfamiliar jurisdictions or at times (typically elections) when they're extremely busy and short of funds. Both types of suits are almost unique to Canada, so there is little academic concern nor examination of whether political subject matter or remote forums are a clear indicator of SLAPP.

BC


One of the first cases in Canada to be explicitly ruled a SLAPP was Fraser v. Saanich (see [1999] B.C.J. No. 3100 (B.C. S.C.)) (QL), where the British Columbia Supreme Court struck out the claim of a hospital director against the District of Saanich, holding that it was a meritless action designed to silence or intimidate the residents who were opposed to the plaintiff’s plan to redevelop the hospital facilities.

Following the decision in Fraser v. Saanich, the Protection of Public Participation Act went into effect in British Columbia in April, 2001. The legislation was repealed in August, 2001. There was extensive debate on its merits and the necessity of having hard criteria for judges and whether this tended to reduce or increase process abuse. The debate was largely formed by the first case to discuss and apply the Protection of Public Participation Act (PPPA), Home Equity Development v. Crow, (see [2002] B.C.J. No. 1805 (B.C. S.C.)) (QL). The defendants' application to dismiss the action against them was dismissed. The defendants failed to meet the burden of proof required by the PPPA, that the plaintiffs had no reasonable prospect of success. While it was not the subject of the case, some felt that the plaintiffs did not bring their action for an improper purpose, and the suit did not inhibit the defendants in their public criticism of the particular project, and that the Act was therefore ineffective in this case.

Since the repeal, BC activists especially the BCCLA have argued repeatedly for a broad understanding of SLAPP and a broad interpretation of judicial powers especially in intervener applications in BC and other common law jurisdictions and when arguing for new legislation to prevent SLAPPs. The activist literature contains extensive research on particular cases and criteria. The West Coast Environmental Law Association agrees and generally considers BC to lag other jurisdictions http://wcel.org/resources/environmental-law-alert/bc-trails-quebec-ontario-protecting-public-chilling-lawsuits. So do some BC lawyers, again listing specific cases http://envirolaw.com/unsuccessful-slapps/.

Ontario


In Ontario, the decision in Daishowa v. Friends of the Lubicon (see [1996] O.J. No. 3855 Ont. Ct. Gen. Div.)) (QL) was also instructive on SLAPPs. A motion brought by the corporate plaintiff Daishowa to impose conditions on the defendant Friends of the Lubicon Indian Band that they would not represent Daishowa’s action as a SLAPP was dismissed.

By 2010, the Ontario Attorney-General considered SLAPP a major problem and issued a major report on them
http://www.attorneygeneral.jus.gov.on.ca/english/anti_slapp/. However, a year later nothing substantial had changed, according to commentators http://lawiscool.com/2011/10/06/renewing-the-debate-on-anti-slapp-legislation-in-ontario/.

Quebec


Québec's then Justice Minister, Jacques Dupuis, proposed an anti-SLAPP bill on June 13, 2008.

The bill was adopted by the National Assembly of Quebec
National Assembly of Quebec
The National Assembly of Quebec is the legislative body of the Province of Quebec. The Lieutenant Governor and the National Assembly compose the Parliament of Quebec, which operates in a fashion similar to those of other British-style parliamentary systems.The National Assembly was formerly the...

 on June 3, 2009. As of November 2011, Quebec's amended Code of Civil Procedure is the only anti-SLAPP mechanism in force in Canada.

This bill was invoked in Ontario (and then Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...

 docket 33819) in the case of Les Editions Ecosociete Inc., Alain Deneault, Delphine Abadie and William Sacher vs. Banro Inc., in which the publisher Ecosociete pled (supported by the BCCLA http://www.bccla.org/othercontent/Ecosociete_BCCLA_argument.pdf) that it should not face Ontario liability for a publication in Quebec, as the suit was a SLAPP and the Quebec law explicitly provided to dismiss these. As of November 15, 2011, the judgement was still pending, having been heard in the Court in March of 2011.

The Quebec law is substantially different in structure than that of California http://www.citmedialaw.org/legal-guide/anti-slapp-law-california or other jurisdictions, however as Quebec's Constitution generally subordinates itself to international law
International law
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...

, the International Covenant on Civil and Political Rights
International Covenant on Civil and Political Rights
The International Covenant on Civil and Political Rights is a multilateral treaty adopted by the United Nations General Assembly on December 16, 1966, and in force from March 23, 1976...

 applies. That treaty only permits liability for arbitrary and unlawful speech. The ICCPR has also been cited, in the BC case Crookes v. Newton, as the standard for balancing free speech versus reputation rights. The Supreme Court of Canada in October 2011, ruling in that case, neither reiterated nor rescinded that standard.

United States


California has a unique variant of anti-SLAPP legislation which has led a significant volume of SLAPP litigation in that state. A search for reported cases on SLAPP litigation in 2009 found 1,386 cases for the State of California alone. The rest of the states combined had about 341, of which Massachusetts accounted for 176, raising the question whether California's SLAPP statute is accomplishing its primary objective of reducing costly litigation
The U.S. state
U.S. state
A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...

 of California
California
California is a state located on the West Coast of the United States. It is by far the most populous U.S. state, and the third-largest by land area...

 enacted Code of Civil Procedure § 425.16 in 1992, a statute
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...

 intended to frustrate SLAPPs by providing a quick and inexpensive defense. It provides for a special motion that a defendant
Defendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...

 can file at the outset of a lawsuit to strike a complaint
Complaint
In legal terminology, a complaint is a formal legal document that sets out the facts and legal reasons that the filing party or parties In legal terminology, a complaint is a formal legal document that sets out the facts and legal reasons (see: cause of action) that the filing party or parties In...

 when it arises from conduct that falls within the rights of petition
Petition
A petition is a request to do something, most commonly addressed to a government official or public entity. Petitions to a deity are a form of prayer....

 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.

To win an anti-SLAPP motion, the defendant must first show that the lawsuit is based on constitutionally protected activity. Then, the burden shifts to the plaintiff, to affirmatively present evidence to show that they have a reasonable probability of prevailing on the action. The filing of an anti-SLAPP motion stays all discovery
Discovery (law)
In U.S.law, discovery is the pre-trial phase in a lawsuit in which each party, through the law of civil procedure, can obtain evidence from the opposing party by means of discovery devices including requests for answers to interrogatories, requests for production of documents, requests for...

. This feature acts to greatly reduce the cost of litigation to the anti-SLAPP defendant, and can make beating the motion extremely difficult for the plaintiff, because they effectively must prove their case without the benefit of discovery.

If the special motion is denied, the order denying the motion is immediately appeal
Appeal
An appeal is a petition for review of a case that has been decided by a court of law. The petition is made to a higher court for the purpose of overturning the lower court's decision....

able. Defendants prevailing on an anti-SLAPP motion (including any subsequent appeal) are entitled to a mandatory award of reasonable attorney’s fees. After an anti-SLAPP motion has been filed, a plaintiff cannot escape this mandatory fee award by amending its complaint. More than 300 published court opinions have interpreted and applied California's anti-SLAPP law.
California's Code of Civil Procedure § 425.17 corrects what the Legislature found to be abuse of the anti-SLAPP statute.

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 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.
At least 26 other states and one territory have also enacted statutory protections against SLAPPs.
[May be out of date, needs checking]
These are Arizona, Arkansas, Delaware, Florida, Georgia, Guam, Hawaii, Illinois, Indiana, Louisiana, Maine, Maryland, Massachusetts, Minnesota,
, Missouri, Nebraska, Nevada, New Mexico, New York, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee, Utah, Vermont, and Washington. In Colorado and West Virginia, the courts have adopted protections against SLAPPs. These laws vary dramatically in scope and level of protection, and the remaining states lack protections.

There is no federal anti-SLAPP law. The extent to which state laws apply in federal courts is unclear, and the Circuit courts have reached different conclusions. The United States Court of Appeals for the Ninth Circuit
United States Court of Appeals for the Ninth Circuit
The United States Court of Appeals for the Ninth Circuit is a U.S. federal court with appellate jurisdiction over the district courts in the following districts:* District of Alaska* District of Arizona...

 has allowed California litigants to use their state's special motion in federal district courts
United States district court
The United States district courts are the general trial courts of the United States federal court system. Both civil and criminal cases are filed in the district court, which is a court of law, equity, and admiralty. There is a United States bankruptcy court associated with each United States...

 located in California, in cases where the court is hearing at least one California state law claim through the doctrine of supplemental jurisdiction
Supplemental jurisdiction
Supplemental jurisdiction is the authority of United States federal courts to hear additional claims substantially related to the original claim even though the court would lack the subject-matter jurisdiction to hear the additional claims independently. is a codification of the Supreme Court's...

.

However, the United States Court of Appeals for the First Circuit
United States Court of Appeals for the First Circuit
The United States Court of Appeals for the First Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* District of Maine* District of Massachusetts...

 has held that the Massachusetts anti-SLAPP law, as a mere matter of procedure, does not apply in federal courts.


It has been argued that the lack of uniform protection against SLAPPs has encouraged forum shopping
Forum shopping
Forum shopping is the informal name given to the practice adopted by some litigants to get their legal case heard in the court thought most likely to provide a favorable judgment...

; proponents of federal legislation have argued that the uncertainty about one's level of protection has likely magnified the chilling effect of SLAPPs.

In December 2009, Rep. Steve Cohen
Steve Cohen
Stephen Ira Cohen is the U.S. Representative for , serving since 2007. He is a member of the Democratic Party. Tennessee's 9th district includes almost three-fourths of Memphis. Cohen is Tennessee's first Jewish congressman....

 introduced the Citizen Participation Act in the U.S. House.

This marks the first time the Congress has considered federal anti-SLAPP legislation (though the Congress is currently considering the closely related issue of libel tourism
Libel tourism
Libel tourism is a term first coined by Geoffrey Robertson to describe forum shopping for libel suits. It particularly refers to the practice of pursuing a case in England and Wales, in preference to other jurisdictions, such as the United States, which provide more extensive defences for those...

.) Like many state anti-SLAPP laws, H.R. 4364 would allow the defendant of a SLAPP to have the suit quickly dismissed and to recover fees and costs.

Balancing the Right of Access to the Courts


The SLAPP penalty stands as a barrier to access to the Courts by providing an early penalty to claimants who seek judicial redress. In recent years, the courts in some states have recognized that enforcement of SLAPP legislation must recognize and balance the constitutional rights of both litigants. It has been said:
Since the Magna Carta
Magna Carta
Magna Carta is an English charter, originally issued in the year 1215 and reissued later in the 13th century in modified versions, which included the most direct challenges to the monarch's authority to date. The charter first passed into law in 1225...

, the world has recognized the importance of justice in a free society. “To no one will we sell, to no one will we refuse or delay, right or justice.” (Magna Carta, 1215.) This nation’s founding fathers knew people would never consent to be governed and surrender their right to decide disputes by force, unless government offered a just forum for resolving those disputes.



The right to bring grievances to the courts, in good faith, is protected by state and federal constitutions in a variety of ways. In most states, the right to trial by jury in civil cases is recognized. The right to cross-examine witnesses is fundamental to our judicial system. Moreover, the first amendment protects the right to petition the government for a redress of grievances. The “right to petition extends to all departments of the Government. The right of access to the courts is indeed but one aspect of the right of petition.”

Because “the right to petition is ‘among the most precious of the liberties safeguarded by the Bill of Rights
Bill of rights
A bill of rights is a list of the most important rights of the citizens of a country. The purpose of these bills is to protect those rights against infringement. The term "bill of rights" originates from England, where it referred to the Bill of Rights 1689. Bills of rights may be entrenched or...

,’ ... the right of access to the courts shares this ‘preferred place’ in our hierarchy of constitutional freedoms and values.

This balancing question is resolved differently in different states, often with substantial difficulty.
543 S.E.2d 65

Nos. S06A1150, S06A1713.

857 A.2d 743

In Palazzo v. Alves (No. 2006-172-Appeal) the Court wrote:
By the nature of their subject matter, anti-SLAPP statutes require meticulous drafting. On the one hand, it is desirable to seek to shield citizens from improper intimidation when exercising their constitutional right to be heard with respect to issues of public concern. On the other hand, it is important that such statutes be limited in scope lest the constitutional right of access to the courts (whether by private figures, public figures, or public officials) be improperly thwarted. There is a genuine double-edged challenge to those who legislate in this area.


The most challenging balancing problem arises in application to SLAPP claims which do not sound in tort
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...

. The common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...

 and constitutional law
Constitutional law
Constitutional law is the body of law which defines the relationship of different entities within a state, namely, the executive, the legislature and the judiciary....

 have developed in the United States to create a high substantive burden to tort and tort-like claims which seek redress for public speech, especially public speech which addresses matters of public concern. The common law in many states requires the pleader to state accurately the content of libelous words. Constitutional law has provided substantive protection which bars recovery against a first amendment defense except upon clear and convincing evidence that there has been deliberate or reckless falsehood. For this reason, ferreting out the bad faith
Bad faith
Bad faith is double mindedness or double heartedness in duplicity, fraud, or deception. It may involve intentional deceit of others, or self deception....

 SLAPP claim at an early stage of litigation should be accomplished with relative ease. Extension of the SLAPP penalties to factually complex cases, where the substantive standard of proof at common law is lower presents special challenges.

Europe

  • In 2010 and 2011, a French blogger was summoned twice by the communication company Cometik over exposing their quick-selling method (a.k.a. one shot method) and suggesting a financial compensation for his first trial. (Attention: sur chaque site, une vidéo est automatiquement lu après le chargement de la page..) The company got dismissed in each affair, but lodged an appeal in each case. On March 31, 2011, the company received a severe condemnation (to its advantage):
      • the censorship of any reference (of its name) on Mathias Poujol-Rost′s weblog,
      • 2,000 euros as damages,
      • the obligation to publish the judicial decision for 3 months,
      • 2,000 euros as procedural allowance,
      • all justice charges for both first and appeal instances.

    United States

    • Prominent foreclosure defense attorney Matthew Weidner was sued by Nationwide Title, a foreclosure processing firm. Nationwide Title also obtained a gag order
      Gag order
      A gag order is an order, sometimes a legal order by a court or government, other times a private order by an employer or other institution, restricting information or comment from being made public.Gag orders are often used against participants involved in a lawsuit or criminal trial...

       against another foreclosure defense lawyer from posting videos of their employees admitting they lied under oath when processing foreclosure documents. The gag order—a prior restraint—was issued without the other party present and is under appeal by the American Civil Liberties Union
      American Civil Liberties Union
      The American Civil Liberties Union is a U.S. non-profit organization whose stated mission is "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States." It works through litigation, legislation, and...

      .
    • Barbra Streisand
      Barbra Streisand
      Barbra Joan Streisand is an American singer, actress, film producer and director. She has won two Academy Awards, eight Grammy Awards, four Emmy Awards, a Special Tony Award, an American Film Institute award, a Peabody Award, and is one of the few entertainers who have won an Oscar, Emmy, Grammy,...

      , as plaintiff, lost a SLAPP motion after she sued an aerial photographer involved in the California Coastal Records Project
      California Coastal Records Project
      The California Coastal Records Project documents the California coastline with aerial photos taken from a helicopter flying parallel to the shore. Their webpage provides access to these images....

      . Streisand v. Adelman et al., in California Superior Court; Case SC077257 See Streisand effect
      Streisand effect
      The Streisand effect is a primarily online phenomenon in which an attempt to hide or remove a piece of information has the unintended consequence of publicizing the information more widely...

      • Nationally syndicated talk radio host Tom Martino
        Tom Martino
        Tom Martino is a consumer advocate and American talk radio host. His nationally syndicated show "The Troubleshooter Show" airs from KHOW, based in Denver, Colorado. His show format focuses on callers who give him specific complaints about businesses, however he also provides business advice to...

         prevailed in an anti-SLAPP motion after he was sued for libel by a watercraft retailer. The case received national attention for its suggestion that no one reasonably expects objective facts from a typical talk show host.
        • Kim Shewalter and other neighborhood activists, as defendants, won an anti-SLAPP motion against apartment building owners. The owners had filed a SLAPP suit because of the defendants' protest activities.
        • Barry King and another Internet poster, as defendants, won an anti-SLAPP motion against corporate plaintiffs based on critical posts on an Internet financial message board.
        • Kathi Mills won an anti-SLAPP motion against the Atlanta Humane Society, Atlanta Humane Society v. Mills, in Gwinnett County (Georgia) Superior Court; case 01-A-13269-1
          • Karen Winner, the author of "Divorced From Justice, is recognized as "[the] catalyst for the changes that we adopted," said Leo Milonas, a retired justice with the Appellate Division of the New York state courts who chaired a special commission that recommended the changes adopted by Chief Judge Judith Kaye." But in 1999, Winner, along with a psychologist/whistleblower, and several citizens were SLAPPed for criticizing the guardian ad litem system and a former judge in South Carolina. Winner's report, "Findings on Judicial Practices & Court-appointed Personnel In The Family Courts In Dorchester, Charleston & Berkeley Counties, South Carolina" and citizen demonstrations led to the very first laws in South Carolina to establish minimum standards and licensing requirements for guardians ad litem — who represent the interests of children in court cases. The retaliatory SLAPPs have been dragging on for nearly 10 years, with judgments totaling more than $11 million against the co-defendants collectively. Reflecting the retaliatory nature of these suits, at least one of the co-defendants is still waiting to find out from the judges which particular statements if any he made were actually false.
            • From 1981 to 1986, Pacific Legal Foundation
              Pacific Legal Foundation
              Pacific Legal Foundation is the first and oldest conservative/libertarian public interest law firm in the United States. PLF was established for the purpose of defending and promoting individual and economic freedom in the courts...

               and San Luis Obispo County, California
              San Luis Obispo County, California
              San Luis Obispo County is a county located along the Pacific Ocean in the Central Coast of the U.S. state of California, between Los Angeles and the San Francisco Bay Area. As of the 2010 census its population was 269,637, up from 246,681 at the 2000 census...

              , filed a suit attempting to obtain the mailing list of the Abalone Alliance
              Abalone alliance
              The Abalone Alliance was a nonviolent civil disobedience group formed to shut down the Pacific Gas and Electric Company's Diablo Canyon Power Plant near San Luis Obispo on the central California coast in the United States...

               to get the group to pay for the police costs of the largest anti-nuclear
              Anti-nuclear
              The anti-nuclear movement is a social movement that opposes the use of nuclear technologies. Many direct action groups, environmental groups, and professional organisations have identified themselves with the movement at the local, national, and international level...

               civil-disobedience
              Civil disobedience
              Civil disobedience is the active, professed refusal to obey certain laws, demands, and commands of a government, or of an occupying international power. Civil disobedience is commonly, though not always, defined as being nonviolent resistance. It is one form of civil resistance...

               act in U.S. history at the Diablo Canyon Power Plant
              Diablo Canyon Power Plant
              Diablo Canyon Power Plant is an electricity-generating nuclear power plant at Avila Beach in San Luis Obispo County, California. The plant has two Westinghouse-designed 4-loop pressurized-water nuclear reactors operated by Pacific Gas & Electric. The facility is located on about in Avila Beach,...

              . Pacific Legal Foundation lost at every court level and withdrew the suit the day before it was due to be heard by the U.S. Supreme Court.
            • In March 2009, MagicJack
              MagicJack
              MagicJack is a device that plugs into a USB port on the user's computer and that has a standard RJ-11 phone jack into which any standard phone can be plugged. This allows the user to make phone calls to almost any phone in the U.S...

               (a company who promotes a USB VOIP device) filed a defamation suit against Boing Boing
              Boing Boing
              Boing Boing is a publishing entity, first established as a magazine, later becoming a group blog.-History:...

               for exposing their unfair and deceptive business tactics regarding their EULA, visitor counter, and 30 day trial period. This was dismissed as a SLAPP by a California judge in late 2009. In the resulting ruling, MagicJack was made responsible for most of Boing Boing's legal cost.
            • In the case Comins vs. VanVoorhis a Florida man named Christopher Comins filed a defamation suit against a University of Florida grad student after the student blogged about a video of Comins repeatedly shooting someone's pet dogs. This was cited as an example of a SLAPP suit by the radio show On the Media
              On the Media
              On the Media is an hour-long weekly radio program, hosted by Bob Garfield and Brooke Gladstone, covering journalism, technology, and First Amendment issues. It is produced by WNYC in New York City...

              .
            • In January 2011 Sony Computer Entertainment America sued
              Sony Computer Entertainment America v. George Hotz
              SCEA v. Hotz is a lawsuit in the United States by Sony Computer Entertainment of America against George Hotz and associates of the group fail0verflow for jailbreaking and reverse engineering the Playstation 3.-Timeline:...

               George Hotz
              George Hotz
              George Francis Hotz , alias geohot, million75 or simply mil, is an American hacker known for unlocking the iPhone, allowing the phone to be used with other wireless carriers, contrary to AT&T and Apple's intent...

               and other individuals for jailbreaking the Playstation 3
              PlayStation 3
              The is the third home video game console produced by Sony Computer Entertainment and the successor to the PlayStation 2 as part of the PlayStation series. The PlayStation 3 competes with Microsoft's Xbox 360 and Nintendo's Wii as part of the seventh generation of video game consoles...

               and publishing encryption and signing keys for various layers of the system's architecture. The defendants and the Electronic Frontier Foundation
              Electronic Frontier Foundation
              The Electronic Frontier Foundation is an international non-profit digital rights advocacy and legal organization based in the United States...

               consider the case an egregious abuse of the Digital Millennium Copyright Act
              Digital Millennium Copyright Act
              The Digital Millennium Copyright Act is a United States copyright law that implements two 1996 treaties of the World Intellectual Property Organization . It criminalizes production and dissemination of technology, devices, or services intended to circumvent measures that control access to...

              . Hotz settled with Sony before trial.

            In effort to prevent four women from filing any Public Records Requests without first getting permission from a judge, or from filing future lawsuits, the Congress Elementary School District filed a SLAPP suit
            Congress Elementary School District v. Warren, et. al.
            Congress School District v. Warren In January 2010, the Congress school district filed a lawsuit against Jean Warren, Barbara Rejon, Cindy Regis and Jennifer Renee Hoge. The district claims illegal harassment by the various requests for public records...

             on January 28, 2010. The Goldwater Institute, a think tank based in Phoenix, AZ, represented the four defendants. The school district said that it has been harassed so often by Warren that it was not able to functionally educate its students. Toni Wayas, the school district’s superintendent, claimed "that it had, time and time again, complied with the requests" The Goldwater Institute argued that the school district had been in violation of state laws mandating government transparency in the past. Investigations in 2002 and 2007 by the state Ombudsman and Attorney General uncovered violations of the state’s open meeting law by the Attorney General’s Office. According to Carrie Ann Sitren of the Goldwater Institute, this was “a clear attempt to silence people in the community who have been critical of the board’s actions, and have made good-faith attempts to ensure the district is spending taxpayer money wisely.” None of the records requested were private or confidential, and thus, should have been readily available to be released to the public, according to the assistant state Ombudsman.

            "Scientology versus the Internet" refers to a number of disputes relating to the Church of Scientology's efforts to suppress material critical of Scientology on the Internet through the use of lawsuits and legal threats.

            Canada

            • Daishowa Inc. v. Friends of the Lubicon, from 1995 to 1998 a series of judgements [OJ 1536 1995] [OJ 1429 1998 (ONGD)] established that defendants, who had accused a global company of engaging in "genocide
              Genocide
              Genocide is defined as "the deliberate and systematic destruction, in whole or in part, of an ethnic, racial, religious, or national group", though what constitutes enough of a "part" to qualify as genocide has been subject to much debate by legal scholars...

              ", were entitled to recover court costs http://sisis.nativeweb.org/lubicon/nov1098.html due to the public interest in the criticism, even if it was rhetorically unjustifiable. This was the first case to establish clearly the SLAPP criteria
            • Fraser v. Saanich (District) 1995, [BCJ 3100 BCSC] was held explicitly to be a SLAPP, the first known case to be so described. Justice Singh found plaintiff's conduct to be "reprehensible and deserving of censure", ordering he pay "special costs" [page 48, Strategic Lawsuits Against Public Participation: The British Columbia Experience, RECEIL 19(1) 2010 ISSN 0962 8797] to compensate.
            • In 2011, in Robin Scory v. Glen Valley Watersheds Society, a BC court ruled that "an order for special costs acts as a deterrent to litigants whose purpose is to interfere with the democratic process,” and that “Public participation and dissent is an important part of our democratic system.” http://www.ecojustice.ca/media-centre/press-releases/b.c.-developer-ordered-to-pay-for-failed-defamation-suit-against-local-conservation-group http://www.ecojustice.ca/media-centre/press-releases/ecojustice-scores-big-victory-for-the-little-guys/?searchterm=glen%20valley However, such awards remained rare. http://wcel.org/resources/environmental-law-alert/bc-trails-quebec-ontario-protecting-public-chilling-lawsuits
            • Crookes v. Openpolitics.ca, filed May 2006 [S063287, Supreme Court of BC], and a series of related suits leading to a unanimous October 2011 ruling by the Supreme Court of Canada
              Supreme Court of Canada
              The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...

               in Crookes v. Newton upholding the rights of online debaters to link freely to third parties without fear of liability for contents at the other end of the link http://www.thestar.com/news/article/1072362. A number of related rulings had previously established that transient comments on the Internet could not be, in themselves, simply printed and used to prove that "publication" had occurred for purposes of libel and defamation law in Canada. Other elements of the ruling clarified how responsible journalism (and therefore the right to protect anonymous sources), qualified privelege and innocent dissemination
              Innocent dissemination
              A person who is found to have published a defamatory statement may evoke a defence of innocent dissemination, which absolves him/her of liability provided that he/she had no knowledge of the defamatory nature of the statement, and that his/her failure to detect the defamatory content was not due to...

               defenses applied to persons accused of online defamation.
            • In May 2010, Youthdale Treatment Centres of Toronto, Ontario filed a defamation suit against various former patients, parents of former patients, and other persons, claiming CAD $5,000.000.00 in damages. The lawsuit, filed on May 5, 2010 on behalf of Youthdale by Harvin Pitch and Jennifer Lake of Teplitsky, Colson LLP claimed that these persons were involved in a conspiracy to, among other things, have Youthdale's licence to operate revoked. Youthdale also claimed their reputation was damaged as a result of various actions by the named defendants, which Youthdale alleged included the creation of websites and blogs containing complaints against Youthdale, including alleged accusations of unlawful administration of psychotropic medications. A notable left-turn for Youthdale occurred in July 2010, when Youthdale became the subject of a Toronto Star
              Toronto Star
              The Toronto Star is Canada's highest-circulation newspaper, based in Toronto, Ontario, Canada. Its print edition is distributed almost entirely within the province of Ontario...

               investigation, in which it was found that Youthdale had been admitting children to its Secure Treatment Unit that did not have mental disorders. The case is still ongoing against some of the named defendants.
            • Businesspeople Garth Drabinsky
              Garth Drabinsky
              Garth Howard Drabinsky, OC is a former Canadian film and theatrical producer and entrepreneur. In 2009, he was convicted and sentenced to prison for fraud and forgery. His sentence is stayed, pending appeal.-Biography:...

               and Conrad Black
              Conrad Black
              Conrad Moffat Black, Baron Black of Crossharbour, OC, KCSG, PC is a Canadian-born member of the British House of Lords, and a historian, columnist and publisher, who was for a time the third largest newspaper magnate in the world. Lord Black controlled Hollinger International, Inc...

               filed numerous suits against critics of their business activities. These received much publicity but were usually settled quickly.
            • Canadian Prime Minister Stephen Harper
              Stephen Harper
              Stephen Joseph Harper is the 22nd and current Prime Minister of Canada and leader of the Conservative Party. Harper became prime minister when his party formed a minority government after the 2006 federal election...

               filed a suit against the Liberal Party of Canada
              Liberal Party of Canada
              The Liberal Party of Canada , colloquially known as the Grits, is the oldest federally registered party in Canada. In the conventional political spectrum, the party sits between the centre and the centre-left. Historically the Liberal Party has positioned itself to the left of the Conservative...

              , the Official Opposition, after the latter paid for trucks to drive through the streets playing a journalist's tape of Harper admitting he knew of "financial considerations" offered to dying MP Chuck Cadman
              Chuck Cadman
              Charles "Chuck" Cadman was a Canadian politician and Member of Parliament from 1997 to 2005, representing the riding of Surrey North in Surrey, British Columbia.- Early life :...

               before a critical Canadian House of Commons
              Canadian House of Commons
              The House of Commons of Canada is a component of the Parliament of Canada, along with the Sovereign and the Senate. The House of Commons is a democratically elected body, consisting of 308 members known as Members of Parliament...

               vote in 2005. This, the Liberals and most commentators and authorities agreed, would be a serious crime if proven. Harper alleged the tape had been altered but a court found no evidence of this. The suit was dropped by Michael Ignatieff
              Michael Ignatieff
              Michael Grant Ignatieff is a Canadian author, academic and former politician. He was the leader of the Liberal Party of Canada and Leader of the Official Opposition from 2008 until 2011...

               after he replaced Stephane Dion
              Stéphane Dion
              Stéphane Maurice Dion, PC, MP is a Canadian politician who has been the Member of Parliament for the riding of Saint-Laurent–Cartierville in Montreal since 1996. He was the leader of the Liberal Party of Canada and the Leader of the Opposition in the Canadian House of Commons from 2006 to 2008...

               as Leader of the Opposition, and so was not heard in court, but was transparently a (successful) effort to get the trucks off the streets.

            See also


            • Barratry
              Barratry
              Barratry is the name of four legal concepts, three in criminal and civil law, and one in admiralty law.* Barratry, in criminal and civil law, is the act or practice of bringing repeated legal actions solely to harass...

            • Cease and desist
              Cease and desist
              A cease and desist is an order or request to halt an activity and not to take it up again later or else face legal action. The recipient of the cease-and-desist may be an individual or an organization....

            • Chilling effect
            • Franchise fraud
              Franchise fraud
              Franchise fraud is defined by the United States Federal Bureau of Investigation as a pyramid scheme.- Franchise fraud in U.S. federal law :The FBI website states:...


            • Lawfare
              Lawfare
              Lawfare is a recently coined word not yet appearing in the Oxford English Dictionary, a portmanteau of the words 'law' and 'warfare', said to describe a form of asymmetric warfare...

            • Legal threat
              Legal threat
              A legal threat is a statement by a party that it intends to take legal action on another party, generally accompanied by a demand that the other party take an action demanded by the first party or refrain from taking or continuing actions objected to by the demanding party.-Nature of legal...

            • Media transparency
              Media transparency
              Media transparency is the concept of determining how and why information is conveyed through various means.As used in the humanities,the topic of media transparency implies openness and accountability...

            • Public participation
              Public participation
              Public participation is a political principle or practice, and may also be recognised as a right . The terms public participation may be used interchangeably with the concept or practice of stakeholder engagement and/or popular participation.Generally public participation seeks and facilitates the...


            • Spamigation
              Spamigation
              Spamigation is mass litigation conducted to intimidate large numbers of people. The term was coined by Brad Templeton of the Electronic Frontier Foundation to explain the tactics of the Recording Industry Association of America , which files large numbers of lawsuits against individuals for file...

            • Vexatious litigation
              Vexatious litigation
              Vexatious litigation is legal action which is brought, regardless of its merits, solely to harass or subdue an adversary. It may take the form of a primary frivolous lawsuit or may be the repetitive, burdensome, and unwarranted filing of meritless motions in a matter which is otherwise a...

               
            • Frivolous litigation
              Frivolous litigation
              In law, frivolous litigation is the practice of starting or carrying on law suits that, due to their lack of legal merit, have little to no chance of being won. The term does not include cases that may be lost due to other matters not related to legal merit...



            Case studies:
            • McDonald's Restaurants v Morris & Steel
            • Scientology and the legal system
              Scientology and the legal system
              The Church of Scientology has been involved in court disputes in several countries. In some cases, when the Church has initiated the dispute, question has been raised as to its motives. The Church says that its use of the legal system is necessary to protect its intellectual property and its right...

            • Varian v. Delfino
              Varian v. Delfino
              Varian Medical Systems, Inc. v. Delfino 35 Cal.4th 180 is a California Supreme Court opinion by then-Associate Justice Janice R. Brown interpreting the state's SLAPP statute...

            • Horizon Group v. Bonnen
              Horizon Group v. Bonnen
              Horizon Group v. Bonnen was a libel suit brought by Horizon Realty Group, a Chicago real estate management company, against one of its former tenants, Amanda Bonnen, in Cook County Circuit Court. This case has received extensive publicity and touches on issues such as consumer protection, limits of...

            • Santa Barbara News-Press controversy#Susan Paterno


            External links