In our line of work, we’ll normally clash with organizations larger and with much deeper pockets than ours.  This gives our adversaries a weapon they can and do use against us, sometimes very effectively.  I’m talking about the Strategic Lawsuit Against Public Participation, or SLAPP suit.  Essentially, it consists of appeals and other legal delays designed to drain the target’s time and resources. 

SLAPP suits are particularly common in the environmental and land use areas of the law.  Ordinarily, they’ll arise masquerading as defamation lawsuits.  Defamation is a common law tort whereby one person or entity can sue another for damage to reputation.  The difference between an ordinary defamation lawsuit and a SLAPP suit is that the plaintiff in a SLAPP suit does not have a reasonable expectation of  actually winning.  Rather, SLAPP suits are intended to intimidate, financially burden, and otherwise discourage activists from exercising their right to free speech and protest.  SLAPP suits are used against individuals who generally have modest resources and are unable to afford the legal counsel necessary to help them protect themselves.

As one court has stated:

SLAPP suits function by forcing the target into the judicial arena where the SLAPP filer foists upon the target the expenses of a defense.
The purpose of such gamesmanship ranges from simple retribution for past activism to discouraging future activism.
Those who lack the financial resources and emotional stamina to play out the “game” face the difficult choice of defaulting despite meritorious defenses or being brought to their knees to settle.
Persons who have been outspoken on issues of public importance targeted in such suits or who have witnessed such suits will often choose in the future to stay silent. Short of a gun to the head, a greater threat to First Amendment expression can scarcely be imagined.

– Gordon v. Marrone, 590 N.Y.S. 2d 649, 656 (N.Y. Sup. Ct. 1992)

The use of this cynical method of silencing one’s critics became so pervasive, as far back as the 1990’s, that some jurisdictions began adopting laws designed to protect citizens’ rights to engage in such protest.  Many of these anti-SLAPP laws offer defendants the opportunity to recover their legal fees if they can prove that they have been forced to defend themselves from what amounts to a frivolous lawsuit.  As such, these laws are an important defense of free speech.  However, even if the defendants ultimately prevail,  they will likely have wasted several years defending their case.  Exoneration from a SLAPP suit, even when it comes, will usually come at a heavy price, including the emotional turmoil of being sued, as well as the loss of what can be considerable legal fees if the defendant doesn’t live somewhere that has enacted anti-SLAPP laws.

Since 2000, animal rights activists in particular have been increasingly targeted by SLAPP suits.  Often, for merely posting a blog on their personal website which names the plaintiff’s organization – much as I’m about to do here in a few minutes.  Other times it’s for organizing a protest or political demonstration.  The threat of these lawsuits is intended to make change advocates like ourselves hesitate before expressing our opinion.  To make us afraid to exercise our individual rights to free speech.  And that most definitely includes those of us who continue to speak out against cetacean captivity here at home, as Marineland Canada has frequently employed SLAPP suits to try to intimidate critics of its abhorrent record of animal neglect and abuse at its facility in Niagara Falls, Ontario. 

Now, normally Marineland loses these cases, and they will continue to do so for as long as they persist in employing such tactics to defend an indefensible business model.  But it requires enormous perseverance and personal fortitude from their adversaries to fight on in the face of these potentially ruinous threats (hats off to you, ‘Walrus Whisperer!’ 🙂 – especially given that, every once in a while, the industry can score a victory in court.

One example where the court was reluctant to dismiss a lawsuit as a SLAPP suit was the case of Marineland v. Dylan Powell.  Powell headed the animal protection group Marineland Animal Defence (MAD), which engaged in picketing and peaceful protest activities.   Marineland alleged that this was part of a conspiracy to injure them, while Powell asserted that the suit was part of a strategy to divert media attention away from numerous allegations of ongoing animal abuse.  Though these abuses had already been documented by many other sources by that time, in 2013 the court ruled to grant a temporary injunction against Powell, and later went on to award costs to Marineland. 

So what does the future hold for these kinds of – I’ll say it here – frivolous lawsuits?  The Canadian Civil Liberties Association (CCLA) believes that those with greater “means and resources” should not be able to discourage public participation.  In particular, targets of SLAPP lawsuits should have access to a legal process which can provide a quick and inexpensive determination by the court as to whether the lawsuit in which they have been named is “abusive or aimed at silencing legitimate and legal expression”.  For this reason, CCLA supported the introduction and passage of the Protection of Public Participation Act, 2015 in Ontario, and are prepared to support similar legislation elsewhere in Canada. 

We at CCA agree that such legislation is important to protect the legitimate (as in ‘non-libelous’, truthful and accurate) expression of views by those who seek to speak up for those who can’t speak for themselves, or for the environment itself.  We should be distinctly uncomfortable with the might-makes-right implication of being able to draw on access to greater resources to intimidate, overwhelm and silence. 

For The Orca’s Voice, 

Chris, Canadian Cetacean Alliance