Quebec Expert Panel Says Protect People Against Abusive Defamation Suits

Strategic Lawsuits Against Public Participation, or SLAPPs for short, have been in the news in the province of Quebec recently.

Typically, SLAPPs take the form of defamation actions brought by large corporate actors to shut down criticism by non-governmental organizations or local citizens. The actions are for huge sums of money and are often seen by critics as really just attempts to bankrupt opponents or intimidate them.

On August 20, 2006, I published a post entitled Quebec Environmental Pioneers Threatened With Being SLAPPed Into Oblivion. It described how one of Quebec's oldest environmental organizations, the Association québécoise de lutte contre la pollution atmosphérique (AQLPA) was facing imminent extinction because of a multi-million dollar lawsuit from a scrap metal operator. AQLPA was instrumental in the Mulroney-Reagan years in getting anti-acid rain programs implemented by the Canadian and American governments:

"In a front page article on Friday, August 18, 2006, the Montreal daily Le Devoir reported AQLPA's insurance company informed the association that its contract protecting it against defamation (director and officer liability coverage) has been retroactively cancelled to a point in time predating the launch of the defamation suit. AQLPA's attempts to find another insurer have all been turned down, according to the newspaper".

That post also described the legislative situation elsewhere in Canada, in the United States and in Australia.

As I further reported on October 9, 2006 in the post Quebec Government Launches Study On Anti-Activist Defamation Suits, a government panel was set up to look at the balance between freedom of expression and the right to one's reputation.

The panel, led by Roderick A. Macdonald, the F.R. Scott Professor of Constitutional and Public Law at McGill University, published its SLAPP report earlier this month. The document is only in French.

Here is what it contains.

It comes out very strongly against the potentially "abusive" nature of SLAPPs and calls on the provincial government to adopt measures to discourage them as they "aim essentially at forcing these individuals or these organizations to limit their public activity, or again, to self-censor their declarations by involving them in costly judicial proceedings they can generally not afford. It is basically a form of judicial intimidation" (Prologue, p. 1).

The report explains that 25 U.S. states have legislation regulating SLAPPs.

The panel suggests 3 possible avenues for government action:

• anti-SLAPP legislation
• amendments to Quebec's Code of Civil Procedure to more strictly control "abusive" defamation suits
• legislation enshrining protection for public participation

The government will hold public hearings into the matter in the fall.

More from:

• Quebec moves to rein in legal bullying, Montreal Gazette, July 19, 2007: "They [report authors] note that Section 46 of the Code of Civil Procedure gives judges the power to throw out nuisance lawsuits. They suggest this section and related sections would have to be beefed up to spell out the right for a judge to reject a SLAPP. But they also suggest a more sweeping approach: adopting a law called the Anti-SLAPP Act. This law would include the changes in the Code of Civil Procedure and an amendment to Quebec's Charter of Rights and Freedoms that recognizes the right to public participation, and the principle of immunity from prosecution that would accompany this new right. The authors also propose creation of a special fund to finance court fights by not-for-profit advocacy groups facing SLAPPs."
• SLAPP- une lois s'impose, dit le comité d'experts (SLAPP - a law is needed says the expert committee), Le Devoir, July 18, 2007: "On évoque que le recours aux SLAPP est un «phénomène réel» qui soulève des «enjeux sociaux importants» et qui suscite au Québec «une réprobation» générale de la population. Il s'agit selon le comité d'une «menace» pour «la démocratie participative et d'un véritable risque de détournement des finalités de la justice». (The recourse to SLAPPs is described as a 'real phenomenon' that raises 'important social questions' and that provokes general 'rejection' from the population in Quebec. According to the committee, it is a real 'threat' to 'participatory democracy and [presents] a true risk of hijacking the goals of justice'.)"