Escaping the SLAPP Trap: Anatomy of an Anti-SLAPP Law
Strategic Lawsuits Against Public Participation (SLAPPs) aim to silence journalists, activists, and everyday people with expensive and time-consuming litigation. This blog looks at what governments can do to prevent the rich and powerful from using SLAPPs to silence criticism.
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Fossil fuel giant Energy Transfer is suing Greenpeace for activism around the Dakota Access Pipeline. The $300 million dollar suit could close down the storied organization for good. The investigative reporting network Organized Crime and Corruption Reporting Project (OCCRP) faces dozens of lawsuits from individuals associated with mafia activity. Publisher HarperCollins faced massive libel claims for publishing a biography of Putin.
These are what are called “SLAPPs,” or Strategic Lawsuits Against Public Participation. These retaliatory suits are a growing threat to free speech, independent journalism, and government accountability. They are part of a toolkit the powerful can use to grind “opponents” into silence.
The intention of these lawsuits is not always to win. Instead, the goal is to harass the victims with expensive, stressful, and time-consuming litigation. They may aim to financially cripple vocal journalists, whistleblowers, activists, and everyday citizens. Such suits either target someone personally or aim to suppress the release of information. When initiated by politicians or their allies, they can amount to extortion in all but name. Many people agree to sign a settlement agreement and self-censor in order to make the suits go away.
Usually SLAPPs are “David versus Goliath” situations. A Russian oligarch may sue a small-town paper or freelance investigative reporter. Recently, however, litigation has targeted larger actors and seems to be more about extortion than silencing. When major corporations face suits and pay out more than they normally would, some allege this allows for dangerous amounts of money to change hands.
SLAPPs have a particularly negative effect on open government. Open government advocates, right-to-information activists, and infomediaries are often major targets. This has a direct effect on their ability to operate and uncover potential wrongdoing. Open government cannot function when it cannot be applied to the powerful.
In response to the patterns of abuse, many jurisdictions are adopting anti-SLAPP laws to protect free speech and safeguard democratic debate. The UK was among the first countries to introduce such rules. Slovakia has a commitment on the topic in its new OGP action plan. The EU has new regulations to address cross-border SLAPPs and enable member states to adopt such rules. The Council of Europe (which includes many non-European members) has adopted an anti-SLAPP resolution. Countries such as Canada and the United States have enacted varying levels of protection, often at the provincial or state level. (The last US Congress introduced an anti-SLAPP law, which did not pass despite bipartisan support.)
What makes an effective Anti-SLAPP law? In this explainer, we will go through the basics. More detailed versions of model laws can be found here and here.
Regular OGP Horizons readers should note that “public participation” has two different meanings, depending on context. In much of open government discourse, public participation is defined in terms of opportunities to give input into government decisions. In the context of SLAPPs, it is a much wider array of public interest activities from exercising speech to litigating for harm.
Goals of an Anti-SLAPP Law
The UK Anti-SLAPP coalition defines three core goals of such a law, which are useful across jurisdictions.
- SLAPPs are disposed of as quickly as possible in court to avoid things being stretched out.
- SLAPP targets must pay the absolute minimum cost if they lose a suit. Where awards are given to the defendant of a suit, they should cover all of their legal costs. One way to cut costs is to shift the burden of proof to the plaintiff.
- Costs for SLAPP filers need to have either cost recovery or a deterrent effect. This means that filers should pay for legal costs (for both sides) and pay for exemplary damages. Such damages can be proportional to filer’s resources, since many SLAPPs are filed by large companies or wealthy individuals.
How an Anti-SLAPP Law Should Work
Anti-SLAPP laws may have a few components.
Step 1: Determine if a case deals with the public interest
Laws need to have a broad definition of protected speech or “public participation.” A strong anti-SLAPP law must cover a wide range of speech and communication related to public interest, which includes but is not limited to reporting on corruption, corporate misconduct, environmental concerns, and government decisions. Narrow definitions can leave gaps that allow powerful interests to suppress dissent through legal intimidation. If a law is too broad, then it can have negative effects: a multi-billion dollar company might claim to be the victim of a SLAPP from a community group trying to demand an environmental clean-up.
An effective law will also extend protections to all individuals and entities engaged in public interest speech, not just traditional journalists or non-profit organizations.
Step 2: Decide whether the behavior is a SLAPP
Determining what triggers special procedures for a SLAPP lawsuit is crucial. There may be some debate on how to create a list of abuses. At a minimum, however, they include the plaintiff using disproportionate resources relative to the claim, numerous aggressive legal letters or threats, or misuse of legal processes to deliberately waste time and rack up costs. There is some discussion to ensure that plaintiffs do not also bring cases in places that have weak speech or press protections.
Step 3: Determine whether a case has merit
A well-crafted law may often shift the burden to the plaintiff to demonstrate that their lawsuit has genuine merit. This discourages abusive litigation tactics and ensures that only legitimate claims proceed.
A test should be based on behaviors, rather than on the mindset of the plaintiff. So, for example, if someone sends numerous legal letters or threats, this may be indicative of a pending SLAPP, regardless of intent. Courts can make determinations based on these types of behaviors, rather than discerning intent. That process is burdensome, time-consuming, and perhaps unreliable for a court to determine what the intention of a plaintiff may be. A merit test requires a court to decide if the plaintiff’s claims had any chance of surviving a legal process. This is important, as the aim of many SLAPP suits is not to win — it is to inconvenience the target. If it does not, a court may move to quickly dismiss and assign penalties and restoration.
A word of caution about merit tests is in order. It is important that legislatures (and courts, in some jurisdictions) do not create a new pathway that punishes public interest plaintiffs. Many public interest cases may be dismissed as “meritless” and may touch on free speech. That does not mean that their aim was to harass or silence their opponents. These are not SLAPPs and they should not be assigned the same penalties as a harassing lawsuit.
Another procedural note: while the court is determining the merit of the case, the court must have the power to create a “stay of discovery.” This allows the court to pause the gathering of evidence which can be costly, invasive, and drawn out.
Step 4: Fast-track the dismissal of SLAPP cases
If dragged out, SLAPPs can cost a lot for defendants. The court must be able to dismiss retaliatory or abusive frivolous lawsuits quickly before defendants spend too much.
Step 5: Assign cost recovery and deterrent penalties for abusive plaintiffs
A strong anti-SLAPP framework includes penalties for those who misuse the legal system to harass critics. At a minimum, this may include mandatory reimbursement of legal fees for the defendant, fines against plaintiffs who bring baseless suits, and sanctions against lawyers who repeatedly engage in SLAPP tactics. California, the District of Columbia, Texas, New York, and Ontario all contain cost-recovery provisions. Longer-term support might include developing stronger professional and ethics guidance for lawyers and law firms to ensure that they do not enable abusive suits.
Step 6: Require transparent and public reporting of SLAPP lawsuits
Anti-SLAPP laws are not yet universal. They also need to be revised. Courts or ministries of justice can track SLAPP lawsuits and make data on their results publicly available. This allows lawmakers and citizens to assess the scale of the problem and refine legal protections over time. A few actions could be helpful. Court statistics agencies and cross-jurisdictional standard setting bodies, like the Court Statistics Project, can introduce common reporting projects. Even without this, major courts could publish anonymous reports on the number of anti-SLAPP motions introduced and the disposition of the cases, including appeals.
Conclusion
An effective anti-SLAPP law is more than just a legal shield — it is a safeguard for democracy and open government. Without such a law, legal intimidation will thrive and transparency will suffer. Governments, civil society, and international organizations must work together to ensure that anti-SLAPP laws are strong, comprehensive, and enforced in practice. The ability to speak truth to power depends on it.
Readers interested in more can reach out to the Coalition Against SLAPPs in Europe, CASE and the Public Participation Project in the United States.
