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New legislation needed to protect free expression from SLAPP suits

Strategic Lawsuits Against Public Participation (SLAPPs) represent a real and present danger to the exercise of free expression in this province of British Columbia, and across Canada.

British Columbians know that lawfully participating in the political life of this province can be a risky business. SLAPPs (Strategic Lawsuits Against Public Participation) aim to penalize citizens for participating in public affairs and to deter others. They have often targeted local residents, citizens’ councils, municipal governments, neighbourhood groups and protesters, who might be sued by developers for reporting bylaw violations, speaking at municipal meetings or even for picketing and circulating petitions.

The favoured causes of action are “defamation” or “tortious interference with contract”. The purpose of such lawsuits is not to have the case heard by a judge (who would dismiss it), but rather to force the critic to either shut up, or pay tens of thousands of dollars to take the matter to court. Hence the term “strategic”.

Since the repeal of B.C.’s anti-SLAPP statute – the first such statute in Canada – mere months after it was proclaimed into law in 2001, numerous citizens and organisations alike in this province have been harassed, intimidated and litigated into silence by stronger parties with spurious – and in some cases outrageous – causes of action. Many of these suits bear the telltale signs of a SLAPP. The pervasiveness of SLAPPs is difficult to measure, because most will achieve their goals of silencing criticism long before they ever get before a judge. These suits fly beneath the radar of public consciousness, escaping the notice of judicial reporters and media generally, but have a profound censoring effect.

In the BCCLA’s view, the province should adopt robust anti-SLAPP legislation that will protect the right to communicate on matters of public interest.

The following provisions  represent the minimum procedural content for any future anti – SLAPP statute in British Columbia.

  1. An express statutory right  to communicate on matters of public interest.
  2. A procedural mechanism for the rapid  identification and  summary  dismissal , with  prejudice,  of  any  lawsuit  that improperly interferes with  freedom of expression  made on a  matter of public interest (i.e., a SLAPP).
  3. Procedural mechanism s to deter the filing of  lawsuits that improperly interfere with  freedom of expression  made on matters of public interest, including, but not limited to,
    1. an automatic award of full indemnity costs to a successful defendant;
    2. an automatic award of compensatory damages in such amount as the court determines to be suitable for the breach of the expressive right (s); and
    3. discretion to award exemplary or punitive damages to a successful applicant (defendant) in cases where the court is satisfied that the plaintiff has attempted to  punish, silence or intimidate the defendant, up to  three times the amount that  plaintiff claimed as damages .
  4. A substantive measure that deems communications made in the public interest to be  occasions of qualified privilege for the purposes of the tort of defamation .

This is not to say, however, that other provisions , in particular those that would further disincentivise the filing of SLAPPs could not be included.

The BCCLA’s 2001 view of BC’s original ground-breaking legislation can be found here.

The BCCLA’s 2011 position paper on anti-SLAPP legislation is here.