Law

SLAPP-happy

Grassroots protesters say they are being gagged

RUTH ABRAMSON August 26 1996
Law

SLAPP-happy

Grassroots protesters say they are being gagged

RUTH ABRAMSON August 26 1996

SLAPP-happy

Law

Grassroots protesters say they are being gagged

He was just a teenager then, but Kevin Thomas still holds vivid memories of his 1987 visit to a Lubicon Cree community in Alberta: “intense poverty, no running water and land completely littered with oil pump jacks and pipelines.” So three years later, when a Canadian arm of the Japanese conglomerate Daishowa began logging on land the Lubicon are fighting to reclaim, he answered the natives’ appeal for outside help. As a member of the Friends of the Lubicon lobby, Thomas helped orchestrate

a 1991 nationwide boycott of companies that buy paper products from Daishowa’s Winnipeg plant. And the Friends credit the boycott for shutting down Daishowa’s saws ever since.

But this David versus Goliath story has an epilogue. Claiming that the boycott had cost the company $5 million in lost sales, Daishowa executives went to Ontario Divisional Court last January and won an injunction forcing the Friends to halt their boycott. The court ruled that it was illegal for the lobby group to economically threaten Daishowa’s customers. This fall, the company’s lawyers will be back in court trying to make that injunction stick—and seeking up to $12 million in damages.

The Friends of the Lubicon are among a select but growing number of Canadians who find themselves on the wrong end of lawsuits for what they claim is

merely exercising their right to free speech. There is even a catchy acronym for the retaliatory legal tactic: SLAPP, short for strategic lawsuits against public participation. “As the public becomes more informed and involved, the SLAPP is being used to suppress that kind of democratic uprising,” argues David Boyd, a lawyer for the Sierra Legal Defence Fund, which is representing the Friends. The suit, says Lubicon ally Thomas, now a 28-year-old Toronto legal researcher, “is about shutting us down by the sheer

weight of the paperwork, money and time involved.” The plaintiffs, of course, disagree. They vehemently deny that they are harassing their enemies or trying to stifle public protests, arguing simply that the boycott of Daishowa customers is an illegal attempt to damage the company. ‘We waited for years, but it got to the point where we had to take action to protect ourselves and our customers,” says senior Daishowa executive Tom Cochran. Indeed, some lawyers argue that there is no such thing as a SLAPP. The fact that judges saw fit to impose an injunction against the Friends is an indication that Daishowa’s case was not frivolous, points out John Hunter, a Vancouver lawyer who has represented MacMillan Bloedel Inc. in cases where similar accusations were made. “The people characterizing them as SLAPP suits are the ones

being sued, or are sympathizers,” he says.

The term itself originates south of the border. The tactic of dragging special interest groups and outspoken citizens into court emerged in the United States in the early 1970s, say academics who track suspicious lawsuits. “Tens of thousands of Americans have been sued, and untold thousands have been silenced by threats,” write George Pring and Penelope Canan in their 1996 book, Slapps: Getting Sued for Speaking Out. The tactic has become so widespread in the United States that nine states, including California and New York, have passed laws to stop the proliferation of lawsuits aimed at simply gagging critics. Those laws include provisions requiring plaintiffs to pay the defendant’s legal costs when cases are dismissed.

In Canada, where SLAPPs have not entered the legal lexicon, public interest groups are hoping the Friends of the Lubicon case will make a bit of history. “It is generating a lot of publicity and making it clear that the legal system is ill-equipped to deal with SLAPPs,” says defence lawyer Boyd. But this is not the first Canadian case to touch on the subject. In 1992, MacMillan Bloedel filed a suit against the Galiano Conservancy Association in British Columbia when the citizens’ group opposed plans to turn company forest on the Gulf Islands into residential subdivisions. And the Sierra defence fund has accused the B.C. Artificial Reef Society of using a SLAPP in suing a journalist for libel after she wrote that the society’s practice of sinking old navy ships for recreational diving was causing environmental damage. This was not a SLAPP, says Tex Enemark, a society director. “If we had an alternative to seek redress, we would do it.”

The disagreement about what is and what is not a SLAPP underscores the need for legislation, say some observers. Chris Tollefson, a University of Victoria law professor who has been tracking suspicious cases in Canada since the early 1990s, argues that anti-SLAPP legislation would resolve the grey legal area. He and former New Democrat MP Lynn Hunter, who represented the Gulf Islands during the Galiano suit, are lobbying for new provincial legislation that would discourage such suits. They want a law that would force any case that a court defined as a SLAPP to be quickly tossed out, and the defendants compensated for their costs. For now, at least, their opponents are maintaining an unperturbed air about the fuss, dismissing the hounding they get from activists with all the irritation an elephant affords a mosquito. “There are a zillion corporations being boycotted,” says Dennis Fitzgerald, MacMillan Bloedel’s manager of environmental communications. “These campaigns are now the way of the world. But it’s not very often,” he adds, “that they have an impact.”

RUTH ABRAMSON