One of the biggest ever lawsuits filed in a defamation lawsuit was by none other than the POTUS Donald Trump. He sued the ghostwriter of his memoir “The Art of Being the Donald” for a comical 5 BILLION dollars when the writer admitted in the book that Trump’s true net worth was only around 150-250 million. On initial glance, it may seem weird that the future-president would do this. This brings us to the heart of frivolous and vexatious claims that are commonly known as ‘SLAPP’ suits, Strategic Lawsuits Against Public Participation. The best way to describe such lawsuits is through the President’s own words.
“I spent a couple of bucks on legal fees, and they spent a whole lot more. I did it to make his life miserable, which I’m happy about.”
The New Jersey State Court immediately dismissed the case against the ghostwriter. There is a recurring pattern in lawsuits like these, run-of-the-mill individuals or small-scale non-profits being brought to court by overpowering wealthy entities or figures. As of recent times, anti-SLAPP legislation has been enacted all over the world, so this article takes a retrospective lens to a time where corporations sue you for speaking. I won't be focusing on the intricacies of defamation or political libel laws but looking towards the real-life implications that such petty lawsuits will bring towards the general public.
To better illustrate the impacts of utilising the legal system in such manners, we can refer to Australia's SLAPP issues, as shown in the Gunns 20 case. Gunns Limited was a forestry and logging enterprise that conducts activities such as milling, processing and exportation of wood products. The company is a heavyweight in the timber industry that boasted 100 million dollars in annual profit before its liquidation in 2013. In 2005, Gunns sued over 20 individuals and organisations for protesting against Guun's logging of old growth's forest and other deforestation activities, which Gunns believed led to a loss of reputation, jobs, and profits. The outcome of this case was much more sombre, as all of the defendants lost and had to pay damages (between the sums of 15,000 and 70,000) and had to sign undertakings, preventing them from protesting against Gunns in the future. Forty lawyers wrote to the Guardian on their concern of this decision potentially opening the floodgates for corporations to use the courts to very simply, get people to 'shut up'.
The Fourth Estate [1]
The press and news media wield influence by conveying important information to society. In recent years, there is a vast increase in powers that Corporations owned, slowly turning into huge players that yield immense political powers. As demonstrated from the previous examples in this article, the main practical reasons of such lawsuits are that the wealthy individuals or massive corporations would prefer to keep some of their more 'adventurous' dealings concealed from the public eye. The critical point here is that it creates a chilling effect on the inherent responsibilities that media publications or investigative journalists own. Journalists and reporters act as a check and balance on the second estate[1] by informing the public whenever they engage in conduct deemed undesirable. These checks and balances bring meaning to the term Fourth Estate. Lawsuits of this nature are a direct intervention on an entity's freedom to speak in the guise of protection of their reputation or monetary freedoms.
SLAPP suits will not harm popular newspapers such as The Wall Street Journal or The Guardian as much as it will towards minor publications that do not have deep wallets to endure countless years of litigation. The aftermath of a lawsuit invariably involves an increase in legal expense insurance premiums and a blow in confidence to any future journalistic ventures in fear of being sued. It is important to emphasise that these unfortunate outcomes will still happen even if the defendants had successfully defended their case.
Why should there be freedom 'After' speech?
Courts all around the world have introduced Anti-SLAPP laws. One of the main criticisms of these kinds of rules is that they theoretically undermine the right of access to courts. The right to bring grievances is a fundamental right that the state and federal institutions should protect. Why do these suits have to go through another legal barricade? Taking a quote from the Supreme Court in Palazzo v Alves
"Anti-SLAPP statutes require meticulous drafting. On the one hand, it is desirable to seek to shield citizens from improper intimidation when exercising their constitutional right to be heard concerning issues of public concern. On the other hand, such statutes are limited in scope lest the constitutional right of access to the courts (whether by single figures, public figures, or public officials) be improperly thwarted".
But practical ordeals shows us that this is not the case. Anti-SLAPP laws tend to have a shallow bar for plaintiffs to prove their case, and yet their existence is imperative. Plaintiffs just have to do due diligence, prove that there are fundamental matters of law that apply to the facts. They serve as a balance to tip the scales that inherent bias in the legal system affecting people of different socio-economic status.
A breather for democracy
Defendants of the Gunn's case published a report titled 'Gunning for Change', which called for law reform and demanded Parliament to prioritise protection to the right of public participation without being deterred by potential vexatious lawfare. Since then, Australia has pretty strong Anti-Slapp law developments in the form of the Protection of Public Participation Act, which protects public discussions of contentious issues. To wealthy plaintiffs that are attempting to abuse the courts by utilising spamigation[3] tactics could be subjected to a financial penalty. NZ has even stronger Anti-SLAPP laws, in the form of the Defamation Act that provides a qualified privilege to publications of public importance. This qualified privilege is blanket protection that applies to all journalist for all causes and is only revoked if the journalist's conduct purports ill will and malice.[2]
America is much more different due to its unique state law system. States such as New York, California, Massachusetts, have stricter Anti-SLAPP Laws. At the same time, plaintiffs can go forum shopping[4] and file claims that in States such as West Virginia that have very lenient state legislation. California is the pioneering state that prioritises public participation rights the most. Plaintiffs have to go through a probability of merits to prove that their case is winnable, risking paying for attorneys' fees and damages for malicious prosecution if they fail to do so.[5]
The UK, surprisingly is one of those states that have extremely plaintiff-friendly libel laws which require the defendant themselves to prove a case against a plaintiff. This has led to self-censoring within the industry. For example, the Church of Scientology in 2015 prevented mass screenings of the Scientology film expository documentary 'Going Clear' through threats of litigation. There is a growing intransigence to reform libel laws for the UK, and top prosecutors tend to adopt in favour of journalistic freedom philosophies in court.In
Conclusion
The most devious thing about SLAPP suits is that it successfully created a red herring, turning the conversation into one that revolves entirely on freedom of speech vs freedom of privacy argument. The real culprit is the practical reality of legal abuse miscreant individuals and corporations filing suits with no intention to win them. It can be to silence critics and protests, or it can be something as simple as pure pettiness. As the President of the United States so eloquently put it
"His life is miserable, which I'm happy about".
[1] Refers to the press and news media both in explicit capacity of advocacy and implicit ability to frame political issues.
[3] Mass litigation to scare the public
[4] A common practice of litigants having their legal case heard in the court thought most likely to provide a favourable judgment.
[5] California Civil Code Procedure 425.16.
Sources (Case law and Defamation/Libel Statutes)
DONALD TRUMP v. TIMOTHY L. O'BRIEN SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION. DOCKET NO. A-6141-08T3
McDonald's Corp v Steel (No.4)
Alan G. PALAZZO et al. v. Stephen D. ALVES. No. 2006-172-Appeal.
Lange v Atkinson 2000 NZCA
Gunns Limited v Marr [2005] VSC 251 (18 July 2005)
Grant v Torstar 2009 SCC 61
New Zealand
Defamation Act 1992, see Section 16
Australia
Protection of Public Participation Act 2008.
Canada
Province of Ontario, Protection of Public Participation Act 2015.
Province of Quebec, Bill 9 2009. An Act to amend the Code of Civil Procedure to prevent improper use of the courts and promote freedom of expression and citizen participation in public debate. Legislation amended - Code of Civil Procedure (R.S.Q. chapter C-25)
Province of British Columbia, Protection of Public Participation Act 2019.
USA
SPEAK FREE Act of 2015.
Arizona, A.R.S. § 12‑751, 752.
California, Code of Civil Procedure § 425.16, 17, 18.
Colorado, no specific statute, Protect Our Mountain Environment, Inc. v. The District Court In and For the County of Jefferson, 677 P.2d 1361, 1368 (Colo. 1984).
District of Columbia, D.C. Code 16-5502.
Florida, Fla. Stat. § 768.295 & Fla. Stat. § 720.304 (4).
Georgia, Ga. Code Ann., § 9-11-11.1.
Illinois, Citizen Participation Act, 735 ILCS 110.
Indiana, Ind. Code § 34-7-7-5 (1), (2).
Massachusetts, M.G.L. c. 231, § 59H.
Michigan, House Bill No. 5036.
New York, N.Y. Civil Rights Law §§ 70-a, 76-a and N.Y. C.P.L.R. §§ 3211(g), 3212(h).
Nevada, Nev. Rev. Stat. 41.635-70
Pennsylvania, 27 Pa. Cons. Stat. §§ 7707, 8301-05.
Texas, Texans Citizens Participation Act, H.B. No.2973.
Washington, Wash. Rev. Code § 4.24.525.
UK
None.