Blocking Public Participation: The Use of Strategic Litigation to Silence Political Expression

Strategic litigation against public participation (SLAPP) involves lawsuits brought by individuals, corporations, groups, or politicians to curtail political activism and expression. An increasingly large part of the political landscape in Canada, they are often launched against those protesting, boycotting, or participating in some form of political activism.

A common feature of SLAPPs is that their intention is rarely to win the case or secure a remedy; rather, the suit is brought to create a chill on political expression. Blocking Public Participation examines the different types of litigation and causes of action that frequently form the basis of SLAPPs, and how these lawsuits transform political disputes into legal cases, thereby blocking political engagement. The resource imbalance between plaintiffs and defendants allows plaintiffs to tie up defendants in complex and costly legal processes. The book also examines the dangers SLAPPs pose to political expression and to the quality and integrity of our democratic political institutions. Finally, the book examines the need to regulate SLAPPs in Canada and assesses various regulatory proposals.

In Canada, considerable attention has been paid to the “legalization of politics” and the impact on the Charter in diverting political activism into the judicial arena. SLAPPs, however, are an under-studied element of this process, and in their obstruction of political engagement through recourse to the courts they have profound implications for democratic practice.

This book will examine the phenomena of strategic litigation against public participation (SLAPPs) in Canada. SLAPPs are legal cases brought by individuals, corporations, groups, or governments in order to curtail political activism and expression. The most common form of SLAPP alleges a breach of a private right – often defamation, slander or libel – and makes a large claim for damages or seeks an injunction. These cases are frequently brought against individuals associated with social movement organizations that are protesting, boycotting, or otherwise engaged in some form of political activism. Corporations, for example will sue activists who might be supporting or calling for a boycott of their products. While SLAPPs take on a number of different forms, and cover a wide range of activities, one common feature is the fact that the intention behind the litigation is rarely to actually win the case or secure a remedy. Rather, the case is brought to create a chill on political participation and expression. In most SLAPP cases, the first stage of the litigation may be to request an injunction, ordering activists to cease their activities. The litigation can become a long drawn out, and expensive process, ostensibly designed to bankrupt the defendants and divert resources away from political activities toward defending the claim. SLAPPs are often settled out of court, usually with an order to keep the details of the settlement confidential and that further restricts activists’ activities.1 A brief conceptual introduction to the SLAPPs and the democratic implications of these lawsuits.2 Elaborates on the way in which SLAPPs operate, including a discussion of the common law causes of action that are typically utilized in SLAPP cases. This chapter also frames a typology based on the parties to SLAPP litigation and the democratic impact of these cases.3 Examines the origins of SLAPPs in a Canadian context, and discusses a number of important SLAPP cases that have taken place in Canada.4 Examines the utilization of SLAPPs in the political realm and looks at cases where politicians and government officials have used the SLAPP strategy to undermine democratic accountability and attack their critics.5 Examines attempts within Canada to regulate SLAPPs and assesses proposals for providing courts with the necessary tools to prevent abuse of their processes.6 Examines the various mechanisms by which the targets of SLAPP litigation can defend themselves and respond effectively to a SLAPP.7 This chapter provides a conclusion and summary of the findings of the book.