Libel Cases and Public Debate – Some Reflections on whether Europe Should be Concerned about SLAPPs

• DOI: http://doi.org/10.1111/j.1467-9388.2010.00666.x
• Published date: 01 April 2010
• Date: 01 April 2010
• Author: Fiona Donson

Libel Cases and Public Debate – Some Ref‌lections

on whether Europe Should be Concerned

about SLAPPs

Fiona Donson

In recent years, Strategic Lawsuits Against Public

Participation (SLAPPs) have become well-recognized

as challenging free speech and public participation in

the USA, Canada and Australia. However, in Europe

SLAPPs remain largely unrecognized with little con-

sideration of their use and impact. This paper argues

that SLAPPs are used in Europe and have been

neglected for a number of reasons. In order to examine

the European SLAPP situation, this paper focuses on

libel law in England and Wales. It considers the debate

on free speech that has flowed out of libel cases and

concludes by reflecting on what advantages might

flow from a refocusing of that debate that includes a

recognition of SLAPPs.reel_66683..94

INTRODUCTION

Over the last few years, the issue of strategic lawsuits

against public participation (SLAPPs) has created much

activist concern, legislative response and academic

comment in the USA.1At the same time the concept has

been growing in recognition and significance in both

Canada2and Australia3where environmental activism

has been the major target of SLAPP actions. However,

the situation in Europe is somewhat different. If you

search the academic literature and activist debates, the

SLAPP has hardly been on the agenda.4Even in

England where the issue of free speech, particularly in

the context of libel law, has recently given rise to much

debate, and where the McLibel Case seemed to herald

the arrival of SLAPPs, the concept is little mentioned.

This paper provides an overview of the best-known

SLAPP cases brought in Europe, most of which can be

found in England. It will examine some of the reasons

why the SLAPP is largely unrecognized within the Euro-

pean context despite the existence of such cases. In

considering why there has been a neglect of the SLAPP,

the paper will consider the relationship between free

speech and public participation and the protection

afforded to both by the European Convention on

Human Rights.5It will also note the impact of previous

high-profile SLAPP suits on possible litigators, and

shifting strategies to silence direct-action protests in

the UK. The paper will use the current demands for

reform of the law of libel in England and Wales to

examine more closely the approach to free speech

within Europe and conclude by considering what

benefits might arise from the inclusion of the SLAPP

action in the wider discussion of free speech and public

participation.

STRATEGIC LAWSUITS AGAINST

PUBLIC PARTICIPATION

SLAPPs were first identified in the USA by Canan and

Pring in their definitive book SLAPPs: Getting Sued for

Speaking Out.6The SLAPP is something different from

an ‘ordinary’ attack on free speech; it is an attack on

public participation in government. This approach

is rooted in the American idea that protected speech

1There are many articles published both in discussion of the SLAPP

generally and in relation to anti-SLAPP legislation developed by

States in the USA. See, e.g., P. Patterson, ‘Have I Been SLAPPed?

Arkansas’s Attempt to curb Abusive Litigation: The Citizen Participa-

tion in Government Act’, 60 Ark. L. R. (2007), 507. There are also a

number of SLAPP projects based in universities, e.g., the First

Amendment Project Anti-SLAPP Resources Centre (see http://

www.thef‌irstamendment.org/antislappresourcecenter.html) and the

California Anti-SLAPP Project (see <http://www.casp.net/#>).

2S. Lott, Report: Corporate Retaliation Against Consumers: The

Status of Strategic Lawsuits Against Public Participation (SLAPPs) in

Canada (PIAC, 2004). See Canadian Internet Policy and Public Inter-

est Clinic, Defamation and SLAPPs (CIPPIC, undated), found at

<http://www.cippic.ca/defamation-and-slapps/>.

3T. Anthony, ‘Quantum of Strategic Litigation – Quashing Public

Participation’, 14(2) Australian Journal of Human Rights (2009), 1.

See also Australian Internet campaign and support group for defen-

dants sued by the logging company Gunns Ltd.: ‘Stop The SLAPP’,

found at <http://www.slapp.org.au/home>.

4For discussion of SLAPPs in the European context, see F. Donson,

Legal Intimidation (Free Association Books, 2000) and S.

Kravchenko, ‘Citizen Enforcement of Environmental Law in Eastern

Europe’, 10 Widener L. Rev. (2003–2004), 475, at 487–491.

5European Convention for the Protection of Human Rights and

Fundamental Freedoms (Rome, 4 November 1960).

6G. W. Pring and P. Canan, SLAPPs: Getting Sued for Speaking Out

(Temple University Press, 1996).

RECIEL 19 (1) 2010. ISSN 0962 8797

© 2010 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.

83