Strategic lawsuit against public participation

Strategic lawsuits against public participation (also known as SLAPP suits or intimidation lawsuits), or strategic litigation against public participation, are lawsuits intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition.
In a typical SLAPP, the 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. In some cases, particularly in the context of investigative journalism, repeated frivolous litigation against a defendant may raise the cost of directors and officers and other liability insurance for that party, interfering with an organization's ability to operate. A SLAPP may also intimidate others from participating in the debate. A SLAPP is often preceded by a legal threat. SLAPPs bring about freedom of speech concerns due to their chilling effect and are often difficult to filter out and penalize because the plaintiffs attempt to obfuscate their intent to censor, intimidate, or silence their critics.
To protect freedom of speech, some jurisdictions have passed anti-SLAPP laws. These laws often function by allowing a defendant to file a motion to strike or dismiss on the grounds that the case involves protected speech on a matter of public concern. The plaintiff then bears the burden of showing a probability that they will prevail. If the plaintiffs fail to meet the burden, their claim is dismissed and the plaintiffs may be required to pay a penalty for bringing the case. They vary widely by jurisdiction. Anti-SLAPP laws are generally considered to have a favorable effect, and many lawyers have fought to enact stronger laws protecting against SLAPPs.
SLAPP is a form of strategic litigation or impact litigation that do not have true legal claims but are focused on deterring a message that they do not like.
A common feature of SLAPPs is forum shopping, wherein plaintiffs find courts that are more favourable towards the claims to be brought than the court in which the defendant (or sometimes plaintiffs) live.
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 legitimate 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, 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 critics, appeals on minor points of law, and demands for broad rulings when appeal is accepted on such minor points of law. In some instances it is clear that plaintiffs are attempting to drain defendants of their financial resources by making the lawsuit as costly as possible, and in these cases the plaintiff's motive may not be legal victory, but merely to waste the defendant's time and money.
When SLAPPs involve copyright law, they can be considered as a type of censorship by copyright.
The acronym was coined in the 1980s by University of Denver 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's originators later dropped the notion that government contact had to be about a public issue to be protected by the right to petition the government, as provided in the First Amendment to the United States Constitution. It has since been defined less broadly by some U.S. 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 are 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 Magna Carta in terms of its significance in the development of democratic institutions. As currently conceived, the right claims that democracy cannot properly function in the presence of barriers between the governed and the governing.
New York Supreme Court Judge J. Nicholas Colabella said in reference to SLAPPs: "Short of a gun to the head, a greater threat to First Amendment expression can scarcely be imagined." In the United States a number of jurisdictions have made such suits illegal, however the conditions that a defendant must satisfy for a dismissal of the suit vary from state to state. In some states, such as California, defendants may be entitled to counter-sue SLAPP plaintiffs under some circumstances. This is commonly referred to as SLAPPback.
In the Australian Capital Territory, the Protection of Public Participation Act 2008 (ACT) protects conduct intended to influence public opinion or promote or further action in relation to an issue of public interest. A party starting or maintaining a proceeding against a defendant for an improper purpose may be ordered to pay a financial penalty to the territory.
Canada's three most populous provinces (Quebec, British Columbia, and Ontario) have enacted anti-SLAPP legislation.
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 organization agrees and generally considers BC to lag other jurisdictions.
In March 2019, the legislature voted unanimously to pass another anti-SLAPP bill, the Protection of Public Participation Act.
A private member's bill introduced in 2001 by Graham Steele (NDP, Halifax Fairview) proposed a "Protection of Public Participation Act" to dismiss proceedings or claims brought or maintained for an improper purpose, awarding punitive or exemplary damages (effectively, a "SLAPP back") and protection from liability for communication or conduct which constitutes public participation. The bill did not progress beyond first reading.
By 2010, the Ontario attorney-general had issued a major report which identified SLAPP as a major problem but initially little to nothing was done.
In June 2013, the attorney general introduced legislation to implement the recommendations of the report. The bill proposed a mechanism for an order to dismiss strategic lawsuits which attack free expression on matters of public interest, with full costs (but not punitive damages) and on a relatively short timeframe, if the underlying claims had no reasonable prospect of success.
The bill enjoyed support from a wide range of groups including municipalities, the Canadian Environmental Law Association, EcoJustice, Environmental Defence, Ontario Clean Air Alliance, Ontario Nature, Canadian Civil Liberties Association, Canadian Journalists for Free Expression, Citizens Environment Alliance of Southwestern Ontario, The Council of Canadians, CPAWS Wildlands League, Sierra Club Ontario, Registered Nurses' Association of Ontario and Greenpeace Canada.
The legislation was re-introduced following the 2014 Ontario election as Bill 52, and on 3 November 2015, Ontario enacted it as the Protection of Public Participation Act, 2015.
Québec's then Justice Minister, Jacques Dupuis, proposed an anti-SLAPP bill on 13 June 2008. The bill was adopted by the National Assembly of Quebec on 3 June 2009. Quebec's amended Code of Civil Procedure was the first anti-SLAPP mechanism in force in Canada.
Prior to Ontario enacting its own Anti-SLAPP law the bill was invoked there (and then Supreme Court of Canada docket 33819). In the case of Les Éditions Écosociété Inc., Alain Deneault, Delphine Abadie and William Sacher vs. Banro Inc., in which the publisher Écosociété pleaded (supported by the BCCLA) 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. The court denied the request, ruling it had jurisdiction. A separate 2011 decision in Quebec Superior Court had ruled that Barrick Gold had to pay $143,000 to the book's three authors and publisher, Les Éditions Écosociété Inc., to prepare their defence in a "seemingly abusive" strategic lawsuit against public participation. Despite the Québec ruling, the book Noir Canada that documented the relationship between Canadian mining corporations, armed conflict and political actors in Africa was never published as part of a settlement which, according to the authors, was only made for the sole purpose of resolving the three-and-a-half-year legal battle.
The Quebec law is substantially different in structure than that of California or other jurisdictions, however, as Quebec's Constitution generally subordinates itself to international law, and as such the International Covenant on Civil and Political Rights 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.
On 11 April 2024, the European Parliament approved an anti-SLAPP directive. The directive replaced a non binding Recommendation (EU) 2022/758 to member states issued by the European Commission on 27 April 2022. The directive's approval came after long series of drafts, discussions and consultations between the European Commission, European Parliament and the EU member states, initiated by the European Parliament's resolution of 25 November 2020 expressing "its continued deep concern about the state of media freedom within the EU in the context of the abuses and attacks still being perpetrated against journalists and media workers in some Member States because of their work" and called on the European Commission to "establish minimum standards against SLAPP practices across the EU".
The most common used to be a civil suit for defamation, which in the English common law tradition was a tort. The common law of libel dates to the early 17th century and, unlike most English law, is reverse onus, meaning that once someone alleges a statement is libelous, the burden is on the defendant to prove that it is not.
As in the European Union there has been increasing anti-SLAPP activism in the UK led by a coalition including English PEN, Index on Censorship, the National Union of Journalists, and Amnesty International.
As of 2024, trends have pointed towards defendants receiving more protection from SLAPP suits in the U.S. Thirty-three states, the District of Columbia, and Guam have enacted statutory protections against SLAPPs as of 2023. These states are Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Missouri, Nebraska, Nevada, New Jersey, New Mexico, New York, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee, Texas, Utah, Vermont, Virginia, and Washington. In West Virginia, the courts have adopted protections against SLAPPs. These laws vary in scope and level of protection, while the remaining states lack specific protections. These protections, however, only apply to suits filed in courts in those states, and plaintiffs often seek jurisdictions more favorable, including federal courts, that lack the same added protections that many defendants would have received in their state court.
For example, in 1992 California enacted Code of Civil Procedure § 425.16, a statute intended to frustrate SLAPPs by providing a quick and inexpensive defense. It provides for a special motion to strike that a defendant can file at the outset of a lawsuit to strike a complaint when it arises from conduct that falls within the rights of petition 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.
In February 2025, Greenpeace went on trial against Energy Transfer in North Dakota, where it had been sued by Energy Transfer itself in 2017 claiming " Greenpeace spread misinformation that incited the protests and severely damaged its ability to run its business." Greenpeace considers this lawsuit a SLAPP; importantly ND does not have a law to dismiss lawsuits shown to be SLAPP cases.
In 2010, Obama signed the SPEECH Act on the closely related issue of libel tourism, offering more protections for suits filed in foreign countries.
The SPEAK FREE Act of 2015 did not receive a vote after being introduced.
In September 2017, a naturopath in Arizona named Colleen Huber filed a defamation lawsuit, preceded by two cease and desist letters, against Britt Marie Hermes, a naturopathy whistleblower. The lawsuit was filed for Hermes' blog post criticizing Huber for using naturopathic remedies to treat cancer and speculating that Hermes' name was being used without her permission in several registered domain names owned by Huber. The lawsuit was filed in Kiel, Germany where Hermes was residing to pursue her PhD in evolutionary genomics. Jann Bellamy of Science-Based Medicine speculates that this is "due to good old forum shopping for a more plaintiff-friendly jurisdiction" as there are no protections against SLAPP lawsuits in Germany. Britt Hermes is a notable scientific skeptic and the organization Australian Skeptics set up a fund to help with legal costs on the case. In an interview at CSICon 2019, Britt Hermes told Susan Gerbic that she had won her case on 24 May 2019. According to Britt Hermes, "the court ruled that my post is protected speech under Article 5 (1) of the German constitution".
In 2022, in the wake of revelations that Greece's National Intelligence Service (Greece) was spying on the leader of PASOK, the third largest party, Nikos Androulakis, the executive director of NIS, Grigoris Kontoleon, and the Secretary General to prime minister Kyriakos Mitsotakis, Grigoris Dimitriadis (also a close relative of Kyriakos Mitsotakis) resigned from office. Grigoris Dimitriadis filed lawsuits against two journalists who had helped uncover the scandal, Thodoris Chondrogiannos and Nikolas Leontopoulos, demanding 150,000 euros as damages for false publications and the removal of those publications, but also against Thanassis Koukakis, a journalist who during 2021 was spied upon because of his investigations on Greek businessmen.
In 2020, Karan Bajaj, the founder of WhiteHat Jr., now owned by Byju's, filed a 2.6 million dollar lawsuit against Pradeep Poonia, a software engineer who publicly accused the company of having a toxic work environment and unethical business practices. The Delhi High Court issued an interim order requiring Poonia to remove certain tweets from his Twitter account. In 2021, Bajaj rescinded the lawsuit.
During 2016, Amir Bramly, who at the time was being investigated and subsequently indicted for an alleged Ponzi scheme, sued for libel Tomer Ganon, a Calcalist reporter, privately for ₪1 million in damages, due to a news item linking him to Bar Refaeli. In addition Bramly sued Channel-2 News and its reporters and managers for ₪5 million in damages due to an alleged libel in an in-depth TV news item and interview with the court appointed liquidator of his companies, and has threatened to sue additional bodies. The sued individuals and bodies have claimed that these are SLAPP actions.
In 2006, Oricon Inc., Japan's music chart provider, sued freelance journalist Hiro Ugaya due to his suggesting in an article for business and culture magazine Cyzo [ja] that the company was fiddling its statistics to benefit certain management companies and labels, specifically Johnny and Associates. The company sought ¥50 million and apology from him. He found allies in the magazine's editor-in-chief Tadashi Ibi, lawyer Kentaro Shirosaki, and Reporters Sans Frontières (RSF).
He was found guilty in 2008 by the Tokyo District Court and ordered to pay one million yen, but he appealed and won. Oricon did not appeal later. His 33-month struggle against Oricon and his research on SLAPPs through his self-expense trip in the United States was featured on the TBS program JNN Reportage, titled as "Legal Intimidation Against Free Speech: What is SLAPP?"
RSF expressed its support to the journalist and was relieved on the abandonment of the suit.
On 17 May 2018, a non-profit project rettspraksis.no challenged a perceived monopoly on the publication of pre-2009 Supreme Court of Norway decisions by publishing a large back catalogue of historical decisions. To prevent publication, the government-established Lovdata foundation demanded an immediate injunction against two project volunteers, Håkon Wium Lie and Fredrik Ljone, that the website be shut down. The foundation claimed that rettspraksis.no had "developed or used software to systematically download rulings from Lovdatas online services" in order to publish the rulings in violation of Lovdata's rights according to the Norwegian Copyright Act section 43, the Database Rights Section. The District Court granted the injunction without a hearing based on finding that the volunteer actions was in violation of section 43, and that the publication on rettspraksis.no would enable other commercial actors to exploit the material in violation of Lovdata's rights even if the project itself did not. A postjudgement hearing on 30 and 31 August 2018 resulted in a reduction in the injunction's effects, most significantly that the Database Rights Section did not extend to rulings published before 2005. Appeals from Ljone and Wium Lie to the Appeals Court and the Supreme Court were denied.
In the late 1990s, many SLAPP cases against independent and pro-opposition media ensued after adoption of the infamous media law, proposed by then minister of information, Aleksandar Vučić. The main characteristic of these cases were quick trials and extremely high fines, most of which were unaffordable for journalists and their media houses. While SLAPP cases became, more or less, rare after the Overthrow of Slobodan Milošević, they gradually reappeared in the late 2010s, and especially in the early 2020s, during SNS-led cabinets. Notably, Aleksandar Vučić is current president of Serbia, the most influential figure of the regime, and he is often accused of suppression of media freedoms.
On 6 March 2024, Chutima Sidasathian won a SLAPP suit against Thanonthorn Kaveekitrattana, after facing defamation charges for a 2022 post exposing misappropriation of funds from the Village Fund program.
A 2021 libel action brought against the publisher HarperCollins and the author and journalist Catherine Belton over the latter's book Putin's People was described by former Conservative cabinet minister David Davis as a SLAPP. Despite winning the legal case brought by several Russian oligarchs, including Roman Abramovich, Belton was left facing legal costs of £1.5 million. UK Government justice minister James Cartlidge said, "the Ministry of Justice is monitoring SLAPP threats against journalists and announced that the UK will be a member of the Council of Europe's inaugural working group on SLAPPs with an anti-SLAPP draft recommendation for member states due in December 2023. I will be giving SLAPPs in UK courts urgent consideration. I want to make it clear that the Government are committed to a robust defence of transparency and freedom of speech. We will not tolerate anything that risks tarnishing the integrity of our judicial and legal profession".
Ministers later said that they would reform the legal system to prevent "intimidation lawsuits"; amendments to this effect were proposed for an anti-corruption economic crime bill before Parliament in March 2022. In October 2023, royal assent was given to the Economic Crime and Corporate Transparency Act 2023. The final Act includes anti-SLAPP provisions covering economic crimes (e.g. corruption, embezzlement), but does not venture beyond those areas.
In February 2024, the Conservative government under Rishi Sunak supported legislation to extend anti-SLAPP protections in all cases whatsoever, but this was not passed before the 4 July 2024 election ended Sunak's government.