Page 2414 - Week 08 - Wednesday, 29 June 2005
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Characteristics of SLAPP suits involve: active and public defendants on the particular issue; technical legal grounds on which the case will be heard, such as defamation, conspiracy, nuisance, invasion of privacy or interference with business or economic expectancy. Of course, individuals or corporations cannot deny the democratic right to speak, so they find other grounds and excessive damages claims.
SLAPPs can use many parts of the law. Most cases use defamation law to stop or punish protestors from expressing views. The Trade Practices Act has also been used. The SLAPPs not only discourage those who are SLAPPed, but also those who are more peripheral to the proceedings but sympathise with the aims of the defendants. The weight of the proceedings, the number of claims and the length of the legal cases are usually intimidating. Essentially, SLAPPs play a significant role in silencing public commentary.
SLAPPs are also a major distraction. Individuals or organisations campaigning on an issue are not usually geared, nor do they have the resources, to have a legal team available to monitor progress, maintain correspondence and make appearance, as is required in many of these cases. Imagine the financial and emotional stress for a local farmer, for instance, who finds himself up for costs of thousands of dollars he can ill afford, and ignorant of the niceties of law. A large corporation has the dollars and the legal resources to grind down its opponents and divert attention away from the corporate activity that originally inspired the campaign.
But, going back, while the impacts on individuals and organisations are significant, do silence, are extremely stressful and should not be ignored, it is important to remember the broader impacts on democracy and public participation. The South Australian Environmental Defender’s Office sums it up well:
Such lawsuits transform what is and what should be a matter of public debate into a private legal dispute. Thus, instead of a public discussion, the issue is debated in a private legal hearing; and instead of the focus of debate being the citizens’ concerns, the dispute becomes focused on the perceived legal injuries of the plaintiff. This leaves the question of who is right in the underlying public debate unanswered and indeed, largely undiscussed. The use of litigation in response to public participation therefore directly subverts and suppresses the democratic process of public debate.
I will give some examples of where these SLAPPs have been used. SLAPPs emerged in the United States in the 1980s and built to a level where eventually they were being lodged against thousands of people each year. In recent years these numbers have reduced as anti-SLAPP legislation has been adopted in various jurisdictions. Of course, one of the most famous SLAPPs was in the United Kingdom where McDonalds took two unemployed activists to court, suing for defamation over a leaflet the pair had been handing out. The resultant case became the longest in UK history and, ironically, a million of those leaflets were distributed world wide after the case was lodged.
While McDonalds won many of its claims and the British Court of Appeal ordered the defendants to pay £40,000 to the $40 billion company, the case was overturned recently in the European Court of Human Rights, which ruled that the British Court of Appeal’s decision breached the European Court of Human Rights Article 6, the right to a fair trial, and article 10, the right to free expression.
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