Of the all the absurd recriminations of the past week regarding the now infamous Harper government robocalls situation, my personal favourite was this: RackNine (the hucksters who operated call centres for several Conservative election campaigns, but which is not currently under investigation) is suing Pat Martin and the NDP for damage to their reputation and alleged loss of business, to the tune of 5 million shekels! One does wonder how a scandal that basically broke five minutes ago could already have such a devestating effect, but I digress…
Never one to be taken for a shrinking violet, Martin retorted in an e-mail: “Classic libel chill lawsuit tactic. How to silence someone with your chequebook!” In other words, RackNine’s move is what is sometimes called a SLAPP or Strategic Lawsuit Against Participation. SLAPPS may sound funny, but the potentially vicious affects they can have on our freedom of speech and our democratic debate is anything but.
In our excessively litigious culture, where people sue each other at the drop of a hat, it would be wise for those unfamiliar with this phenomenon to learn a little more about it.
Wikipedia defines SLAPP as being a frivolous “lawsuit that is intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition.” The general idea is not to win the case, but rather to make the lives of your victims so miserable and costly that they will eventually become so hopeless or bankrupted they wave the white flag.
For the most part, the plaintiffs in these types of legal actions are giant faceless multinational Goliaths with deep pockets. Whereas the defendants are your typical Davids (NGOs, small publishers, etc.) armed with the legal equivalent of a slingshot.
There are countless examples of this throughout the world, but perhaps the most notorious that we’ve seen emerge right here at home is the case of Barrick Gold versus underground publisher Écosociété.
I should probably be careful what I say about the huge multinational mining giant that poured millions into a libel law suit against the book Noir Canada, lest I get slapped with a lawsuit of my own for daring to criticize the powers that be in this country (alright, I’m flattering myself when I say that I’m worthy of any legal action!!!). But surely recounting the facts of the case in my blog won’t require any legal council ( or will it)?
Anyway, according to the statement posted on the publisher’s own website regarding the now defunct book, the company decided to settle out of court with their accusers because some of the allegations made in the book about Barrick proved to be unfounded. According to a UN report on the situation, Barrick was never involved in any wrongdoing in Tanzania involving the Bulyanhulu concession in 1996 (where the local population was displaced by force) nor did it have blood on its hands over its mining operations in the Congo.
Of course, withdrawing these portions of the book wasn’t enough for Barrick. Instead, they demanded total removal of the book from shelves because of its popularity, unusual for a book of this kind. Despite the gag order, the publisher Écosociété considers that “Noir Canada is relevant and of public interest, that the thesis developed constitutes an essential contribution to critical thinking and deserved to be published.”
In an article published in last November’s Walrus, one of the authors of the book, William Sacher, was quoted as saying that as a result of the threat of legal sanction, “we’ve been constrained to a state of auto-censorship, contrary to our principles.” The article also provides a good legal analysis of the problems related to legislating against SLAPPS.
Québec remains the only Canadian province to enact anti-SLAPP legislation (Bill 9) which allows judges to throw out abusive law suits. The defendants must submit a motion proving that they are being victimized an, if so, the court may order that the plaintiff pay the costs of the defendant to level the playing field.
But aside from Québec, no other jurisdiction (BC briefly introduced a similar law, under the previous NDP government, that has since been repealed by the provincial Liberal government) has anything like this measure. The reasons, according to the article, are complex.
Firstly, section one of the Canadian Charter enables the state to limit freedom of expression, so long as it meets certain criteria. Secondly, the Charter does not cover civil lawsuits between private citizens. Finally, SLAPPs are difficult to identify and impossible to estimate. How many of us, especially in the media, have been subject to legal threats at one time or another?
The cause of Écosociéte made headlines and became something of a cause célèbre among freedom of speech advocates all over the planet. In Québec, Pierre Noireau, in an editorial written for Le Devoir last December, argued that the Barrick case goes right to the heart of our modern democracy in that it touches on one of the most sacred rights we have: freedom of expression. It ends with the following question: “Can we still be critical in our society? Should power (and money) always prevail over the right to know, or at least the right to question publicly? The future of thought rests on this case (English translation by the Walrus). ”
In my view, the answer to the last question, is an unequivocal no.
