Freedom of Speech is SLAPP’ed Again

What would you think if a company goes to extraordinary means to stop the spread of facts concerning itself? Clearly, those facts need to be known! Right?
No problem, you say. If it’s that important, somebody will talk about it. He will ensure that the facts be known … until he is hit with a multi-million-dollar law suit. A law suit for what? For wanting to publicly debate the state of affairs? In principle, an individual or a non-profit society should be able to defend itself against a ‘bad’ law suit … unless the company in question sends the cost of such a defence beyond the society’s means.

Imagine that the suing company directs its lawyers to mount a complicated case against the society that is attempting to draw attention to the company’s activities, a case that is described in a document a thousand pages long. In order to defend itself, the accused must then shoulder the cost of lawyers to respond to the accusation, paragraph by paragraph. This task in itself is enough to force the defendant to mobilize all of its financial and human resources towards its case; it is arranged to cripple the defendant.* It is not an option for the defendant not to defend itself and to accept a fine, because the damage sought is astronomical, many times the annual operating expenses of the society, or in the case of an individual, many times what the person could earn in a life-time.

Bear in mind that all of this is based on an accusation that doesn’t have any hope of winning in court. It is not an attempt on the part of the suing company to achieve justice, but rather a strategic move with the goal of silencing the participation of the public. It is a Strategic Lawsuit Against Public Participation (SLAPP). It is ironic that our judicial system, financed by the public, is used, or rather abused, as a tool against members of the public in order to silence those members, rather than to protect them. SLAPP’s are a serious threat to freedom of expression and weaken public debate.*

The goal of the suing company is to intimidate: to intimidate the defendant, to intimidate anybody else who might otherwise support the defendant, to intimidate anybody who in the future might even consider drawing attention to similar facts about a large company or institution. The goal is to neutralize or censure public criticism of their activities.* Note how effective it is. In this article, no company using a SLAPP has been named. It is not even mentioned what those unnamed companies have done.

The net result is that our judicial system is being used not for its original purpose to determine what is just, but instead it is used, or rather abused, as a tool with which to inflict crippling expenses on the victim.

This is not just a horror story. SLAPP’s are real. They happen regularly. There have been at least four cases recently in Quebec alone: Quebec Association for the Fight Against Atmospheric Pollution (Association québécoise de lutte contre la pollution atmosphérique); Association of the People of l’Île d’Orléans Against the Methane Port (Association des gens de l'Île d'Orléans contre le port méthanier); the magazine, À Babord; and Les Éditions Écosociété (http://www.ecosociete.org).
For the sake of illustration, consider the case of the publishing house, Les Éditions Écosociété, a non-profit organization. Under protest is a book that brings together and analyses national and international documents already available to the public concerning various abuses by several Canadian companies working in Africa. The documents cited are serious, credible, and abundant. They come from sources such as the UNO, depositions made in the chamber of representatives in Washington, and products of reputable international non-governmental organizations. Together, these facts paint a picture of the companies that would shame any Canadian. The questions raised by the book belong in the public domain and ought to be known by the Canadian public, more so since the latter indirectly finances the societies that are named in the book via their pension funds, RRSP’s, and other public funds.*

The companies want to keep the story quiet. Two of the companies named have hit the authors and Les Éditions Écosociété with SLAPP’s. One of them is applying the SLAPP in Quebec, the other in Ontario. This means that Les Éditions Écosociété and the authors must defend themselves twice under two different judicial systems. One of the companies may demand in advance the court fees that would be owed by Les Éditions Écosociété if it were to lose the case, which would most likely bring it to immediate bankruptcy,* before it even has the chance to defend itself in court.
SLAPP’s effectively put a gag on citizens, preventing the free dissemination of the facts and the free discussion of ideas.* An anti-SLAPP law is necessary so as to allow citizens to be fully informed, to participate in the democracy of their society, and to participate in the decisions that are taken to fashion the future of their society.

An anti-SLAPP law is needed in Ontario, Quebec, and the other provinces to stop this abuse. The goal of an anti-SLAPP law must be to ensure the freedom of expression in the context of public debates. An anti-SLAPP law must permit quick action in SLAPP cases. The law must give support to the victim of the SLAPP, probably in the form of a fund that pays the court costs of the victim. It is also necessary to make it clear that the law will apply equally to SLAPP cases that are already in progress at the time when the bill passes into law.

If you are reading this article in the PEN right now, you surely understand the importance of free speech in a democracy. Free speech that can and should draw attention to bad things. This is the only check that a free-market society has to attempt to balance moral and social issues against the monetary and profit issues that are driven by a free market.

Several American states already have an anti-SLAPP law. Before the provincial election in the fall of 2008, Quebec had tabled an anti-SLAPP bill. The bill had passed nearly all of the hurdles to become law before dying on the table with the coming of the provincial election. Kathleen Weil, Quebec’s minister of justice, has re-tabled the anti-SLAPP bill in Quebec on April 7, 2009. Thus, Quebec may be the first Canadian province to adopt an anti-SLAPP law.

Let us have an anti-SLAPP law in Ontario, too. To help make it happen, please write to your member of parliament and to your Attorney General (http://www.attorneygeneral.jus.gov.on.ca/english/feedback.asp).

Jeffrey W. Blezius

* These phrases were originally written by Les Éditions Écosociété.