Strategic lawsuits against public participation – fight or flight?

By Joslyn Ma and Pratik Bakshi|20 September 2018
strategic lawsuits

Lawsuits that purport to limit public input are commonly used to silence critics and hinder freedom of expression, writes World Law Forum co-founders Joslyn Ma and Pratik Bakshi.

Imagine taking a flight and being terribly bothered by the poor customer service of the airline. You publish a blog against the airline and provide factual accounts of your experience. Soon after, the airline threatens to take legal action against you for alleged defamation and request that you take the post down and tender an unconditional apology.

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Now, you are presented with two 'options'. One, to take the post down and act against your principles to avoid the hefty legal costs. Two, to stand by your words and suffer from the negative consequences of defending a costly lawsuit, which will likely be ruled in the favour of the airline, thanks to their well-resourced and Ivy-league educated legal team.

Strategic lawsuit against public participation (SLAPP) is a common strategy used to silence critics and hinder freedom of expression. The term SLAPP, was coined by two professors from the University of Denver in the 1980s, who defined SLAPP as a situation where a public, political controversy turns into a private and legalistic one. This generally involves the instigation of malicious, meritless and costly lawsuits by a powerful corporation, government, politicians or even the press with the sole intention to intimidate public-spirited institutions or individuals.

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A leading Australian case is that of Gunns Limited v Marr & Ors, where Gunns filed a writ in the Supreme Court of Victoria, against 20 individuals and organisations including then-senator Bob Brown, for over $7.8 million. Gunns claimed that the defendants had negatively affected Gunns' reputation causing losses – monetarily and in the work force. On the other hand, the defendants maintained that they were just trying to protect the environment. The Supreme Court of Victoria ruled in favour of the defendants and instructed Gunns to submit a "radically altered" version of its claim document if it wanted to move forward with their case. Since the Gunns case in 2005, there have been several other SLAPPs in Australia and other countries across the world.

To protect freedom of expression and to deter such malicious acts, some states of Australia, Canada and the US have enacted anti-SLAPP legislations. These legislations generally involve penalties for plaintiffs who file lawsuits ruled frivolous by the court and allow for the subsequent dismissal of the lawsuit.

However, the difficulty often faced by legislators when drafting anti-SLAPP laws is that of determining how to ensure the early termination of malicious SLAPPs without denying valid good faith claims a legitimate day in court. This has often been the source of controversy for existing anti-SLAPP legislations and criticism from those who believe that there should not be any barriers to the right to petition and access to justice.

India, the world’s largest democracy, provides for the perfect testing ground for starting a much-needed discussion on SLAPP. The nation of 1.3 billion people is the home to diverse cultures, people and contrasting wealth and power. With the upcoming national election in sight, the battle of power and political exchanges of words between the left wing and the right wing, in good faith or otherwise, will be inevitable.

Moreover, in the last decade, India has seen a surge in SLAPPs and the courts have, in a few decisions, discussed the jurisprudence behind SLAPP legislations beyond the border, showing the legal system’s openness to embrace such laws. At the same time, India’s legal system is known for its flaws, the greatest of which is the delay in the delivery of justice, hence further prompting the need for early determination of SLAPPs to allow for the better allocation of resources.

The World Law Forum is organising a conference on 20 October 2018 in New Delhi (India) on SLAPP.

Strategic lawsuits against public participation – fight or flight?
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