What is Strategic Lawsuit Against Public Participation (SLAPP)?
In the case of FCF MINERALS CORPORATION v. LUNAG ET AL. (G.R. No. 209440. February 15, 2021), the Supreme Court expounded on what a Strategic Lawsuit Against Public Participation (SLAPP) means.
A Strategic Lawsuit Against Public Participation[1] or SLAPP generally refers to claim suits filed against private individuals as a retaliation to the latter's recourse to the government on an issue of public concern. SLAPP actions do not forward any genuine cognizable interest but are only used to oppose and to suppress the defendants' political activities.[2]
The concept of SLAPP is of foreign origin. The term was first coined by American legal sociologists George Pring and Penelope Canan in the late 1980s. At that time, they observed a proliferation of damages suits used by deep-pocketed individuals and corporations against citizens who participate in public issues.[3] They concluded that these cases called SLAPP derail public participation by intimidating defendants and drying up their resources.[4]
Pring and Canan have described the development of SLAPP suits into three stages.[5]
First, a citizen addresses the government on a matter of public concern. The citizen espouses a view contrary to that of another individual or group, who is inevitably threatened by the citizen's actions because this undermines their interest, which is often monetary.Second, those threatened by the communication to the government will file a case to intimidate the citizen, who, in turn, is compelled to spend time and money to defend themselves. Third, the defendant-citizen must raise the defense that their communication to the government was constitutionally-protected.[6]
In the process, the plaintiff in a SLAPP suit uses the judicial process to silence the defendant. Pring and Canan remarked that SLAPP filers were able to use the courts and judicial processes as leverage against ordinary citizens.
These suits are not ordinary because they do not use the courts as an end in themselves, as a normal decision-making body. Rather, they use court leverage to empower one side of a political dispute and to transform it, unilaterally. You may think you are speaking out against a city zoning permit for an unwanted toxic waste dump in your town. Then, suddenly, "city hall" becomes "courtroom"; "zoning" becomes "slander"; ''permit denial" becomes "$1,000,000 in damages." The magic wand of a SLAPP has conjured you away from the place where your issue could be resolved, completely changed what issues can be discussed, and increased the stakes with a wholly unexpected monetary risk. Normally thought of as the protectors of constitutional and political rights, courts are being used, in SLAPPs, to transform public political disputes into private judicial disputes, to the unfair advantage of one side and the disadvantage of the other.[7]
Regardless of the result of the SLAPP suit, the plaintiffs goal is achieved once damage and hardship are caused to the defendant who was forced to participate in a litigious process.[8] As a result, SLAPP suits not only silence defendants for engaging in political activities, they also create a chilling effect by discouraging everyone else from doing the same.[9]
It is this political retaliation, through the law, that distinguishes SLAPP suits from the commonly observed intimidation and retaliation through litigation between commercial competitors, business partners, labor and management, and regulatory agencies and licensees. Strategic lawsuits against public participation, on the other hand, claim injury from citizen efforts to influence a government body or the electorate on an issue of public significance.[10]
Due to the costly nature of SLAPP suits, it is common that its filers are corporations or individuals who have the monetary resources to initiate and to sustain litigation.[11] SLAPP suits are known for the apparent disproportionate power between the filer and the target. Often, the plaintiff has deep pockets and can afford prolonged litigation, while the defendant is an ordinary citizen whose financial resources can easily be depleted.[12]
To resist these types of suits, a counterclaim or countersuit for damages called a SLAPP-back may be instituted by the SLAPP suit target. Pring and Canan argued that there are a number of legal grounds for a SLAPP-back, such as violation of constitutional rights, violation of civil rights statutes, abuse of process, and malicious prosecution and other tort.[13]
Earlier SLAPP-back or anti-SLAPP laws were crafted based on the First Amendment of the United States Constitution, which recognizes the people's right to free speech and right to petition the government to redress grievances of public matter.[14] At the core of anti-SLAPP laws is the protection of free expression, press and assembly, which are fundamental principles of liberty and justice and "among the most precious of the liberties guaranteed by the Bill of Rights."[15] Thus:
SLAPP suits are fundamentally different from other types of lawsuits because they seek to stifle legitimate political expression. The potential ramifications of these SLAPP suits demand special attention because they represent an attack on the first amendment rights which are at the heart of our democracy.
. . . .
[C]itizens are legally guaranteed the right to intervene in land use and zoning decisions, and that their active participation is absolutely crucial to our goal of protecting the environment. First and foremost, the United States Constitution establishes the right of every American to petition the government for the redress of grievances, a principle which certainly applies to citizen participation in government decision on planning issues.[16]
SLAPP suits go against these fundamental liberties because they intend to stifle democratic participation. Thus:
So the petitioner clause, indeed our entire political system recognizes that the "word of the represented" is essential to the way government shapes our lives. Further, the right is not dependent on whether the citizens' views are right or wrong, wise or foolish, public-spirited or venally self-interested. Implicit in this concept is a very modem view of the superior competitiveness of truth in a free market of ideas. As Justice Holmes stated in one of his famous dissents, destined to become the law: "[T]he ultimate good desired is better reached by free trade in ideas [and] the best test of trust is the power of the thought to get itself accepted in the competition of the market...That at any rate is the theory of our Constitution."
SLAPPs are a contradiction of these fundamental principles, as they are a counter-attack against petition-clause-protected activity.[17]
SLAPP suits emerged in 1970s at the time of development boom in urban areas. SLAPPs were filed by property developers who are at odds with local community groups opposing the land developments.[18] Pring and Canan likewise noted that SLAPP is frequently used in suits involving environmental and land use issues. Most common examples of SLAPP suits are by land developers who file cases against local residents who are opposing the development.[19]
Nevertheless, anti-SLAPP statutes were not only applied to environmental concerns, but to any matter arising from participation in political activities.[20] Initial cases of SLAPP in the United States involve citizens being sued for reporting law violations, writing to government officials, attending and testifying before public hearings, lobbying, filing protests, and participating in demonstrations.[21]
These political retaliation cases were not categorically labelled as SLAPP. Instead, they are often masked as conventional torts, such as defamation and business interference.[22] Thus, to determine if a suit is a SLAPP, Professor Pring and Canan provided indicia that the courts may look for in a defendant and plaintiff in a suspect SLAPP suit. Thus:
SLAPPs normally do not advertise themselves as such. Filers do not usually use people for "exercising their First Amendment rights" or "petitioning the government" or "speaking out politically." Instead, to gain and maintain access to the court, filers must recast or camouflage the targets' political behavior as common personal injuries or legal violations. They need to mask the nature of the dispute and present it as personal and legal, not public and political.
Two litmus tests can determine whether a case is a SLAPP: defendants' actions, and plaintiffs' claims.
1. Defendants' actions: To begin with, exactly what activities of defendant-targets are described in the fact section of the filer's complaint? Do any of those activities involve communicating with government officials, bodies, or the electorate, or encouraging others to do so? Are government hearings, complaints, appeals, letters, reports, or filings mentioned? If so, the case is a SLAPP. Even if no government-connected actions are mentioned, however, one must ask: Are targets politically active citizens and groups? Are they involved in speaking out for or against some issue under consideration by some level of government or the voters? If so, there is a high likelihood that a suit against them is a disguised SLAPP, regardless of the facts alleged.
2. Plaintiffs' claims: SLAPPs repeatedly use six very predictable tort or other legal categories to mask their real purpose. They are, in order of frequency, (1) defamation, (2) business torts, (3) conspiracy, (4) judicial or administrative process violations, (5) violation of constitutional or civil rights, and (6) other violations (nuisances, trespass, invasion of privacy, outrageous conduct, falsifying tax-exempt status, and so on). If any of these categories are specified, suspect a SLAPP.[23]
The application of SLAPP was meant to be broad and encompassing. As Pring and Canan described, SLAPP only requires that the communication to the government is an issue of public interest or concern. Thus, to constitute SLAPP, they proposed that the following elements must be present:
1. a civil complaint or counterclaim (for monetary damages and/or injunction);
2. filed against non-governmental individuals and/or groups;
3. because of their communications to a government body, official, or the electorate; and
4. on an issue of some public interest or concern.[24]
Before anti-SLAPP state laws were enacted, the Federal Rules in United States already provided mechanisms to combat SLAPP cases. While it was not crafted with SLAPP suits in mind, Rule 11 of the 1937 Federal Rules of Civil Procedure deterred abuse of judicial processes, including SLAPPs. The rule required the lawyer's signature to certify that he or she has read the pleading and held a good faith belief that there is good ground to support it.[25]
As civil cases flooded the courts in the late 1970s, Rule 11 was amended in 1983 to amplify its deterrent effect by defining the appropriate standard of lawyer's conduct and broadening sanctions. However, this led to the growth of sanctions litigation at the expense of free access to the courts.[26] The amended rule was rarely invoked due to its "soft standards and meaningless sanctions." To show that the case was sham and false, the subjective bad faith of the plaintiff must be proven in court. Even if the conditions are met, the imposition of sanctions was discretionary.[27] A subsequent amendment in 1993 broadened the scope of sanctioned activities but applied greater constraints on the imposition of penalties.[28]
In the late 1980s, the proliferation of SLAPP suits has caught the attention of various states in America. As a response, several states began adopting legal reforms to deter the filing of SLAPP suits.[29] There are variations of anti-SLAPP legislation across different states and the scope of each laws differ. Nevertheless, these statutes are consistently applied to causes of action involving the Constitutional right to free speech and petition to redress grievances.
In 1989, the Washington State is the first state to enact an anti-SLAPP law. Under the Revised Code of Washington, a person who communicates to the government is immune from civil liability for claims based upon the communication to the agency or organization and is entitled to recover counterclaims.[30]
A few years later, the State of California passed a broader anti-SLAPP law which covers not only communications to government agencies, but also to any matter of public concern expressed in public. The anti-SLAPP provision found in Section 425.16 of the California Civil Code sought "to encourage participation in public interest matters and [to] avoid the chilling of such participation through abuse of judicial process."[31] The statute may be invoked to dismiss unmeritorious claims filed to interfere with valid exercise of free speech and petition for the redress of grievances. Other states such as Colorado, Indiana, Louisiana, Nevada, Oregon, and Oklahoma followed this broad model.[32]
Notably, other forms of anti-SLAPP law have a narrower model. For instance, Pennsylvania's anti-SLAPP statute may only be invoked with respect to enforcement of environmental law or regulation.[33]
Other countries also adopted their own anti-SLAPP statutes.
In Canada, SLAPP first gained attention in 1992 when MacMillan Bloedel Limited, a large multinational forestry corporation, filed an action against a local conservancy group. The corporation alleged that the conservancy group illegally conspired with the local government, which earlier enacted zoning by-laws that prevented the corporation from developing large-scale land holdings. Subsequently, the corporation decided to drop the case. In issuing the consent dismissal order, the Supreme Court of British Columbia ruled that the conservancy group may pursue examinations of the corporation in order to claim the award of damages.[34]
In the 1999 case of Fraser v. Saanich, the Canadian Court explicitly recognized a litigation as SLAPP. In that case, Ellen Fraser sought to redevelop a property in a residential neighborhood. However, the residents lobbied against it and subsequently, the local council enacted by-laws changing the zoning of the property, precluding the redevelopment. Fraser then sued the local council as well as the residents for negligence and interference with contractual relations, among others.[35]
In dismissing the suit, the Supreme Court of British Columbia held that Fraser's action is a SLAPP because it was clear that the claim of Fraser has no underlying reasonable cause of action and that it was merely an attempt "to stifle the democratic activities of the defendants."[36] The Canadian Court explained that these kinds of lawsuits cast a chilling effect on the public's participation in political and democratic processes. Thus:
While neighbourhood participation in municipal politics often places an almost adversarial atmosphere into land use questions, this participation is a key element to the democratic involvement of said citizens in community decision-making. Signing petitions, making submissions to municipal councils and even the organization of community action groups are sometimes the only avenues for community residents to express their views on land use issues.... This type of activity often produces unfavourable results for some parties involved. However, an unfavourable action by local government does not, in the absence of some other wrongdoing, open the doors to seek redress on those who spoke out in favour of that action. To do so would place a chilling effect on the public's participation in local government.[37]
At that time, several groups have been vocal for the passage of an anti-SLAPP legislation.[38] Finally, in 2001, the jurisdiction of British Columbia passed the Protection of Public Participation Act. The law seeks to "encourage public participation, and [to] dissuade persons from bringing or maintaining proceedings or claims for an improper purpose."[39] In SLAPP suits, the defendant may file an application to dismiss the case, claim reasonable costs and damages against the plaintiff.[40]
In 2015, Ontario also passed its own Protection of Public Participation Act which sought to encourage and promote participation on matters of public interest. Upon motion of a defendant, the court may dismiss the case if it is shown that "the proceeding arises from an expression made by the person... [which] relates to a matter of public interest."[41]
In Australia, a rise on the SLAPP suits filed by Australian corporations was seen in the 1990s following the same phenomenon in the United States and Canada.[42] However, at that time, the Australian courts also have not explicitly recognized SLAPP suits.[43]
One of the notable SLAPP suit cases is Gunns Ltd. v. Marr. In 2004, Gunns Ltd., one of the largest logging company in Australia,[44] filed a claim for conspiracy, defamation, and economic interference against environmental activists and government officials seeking to protect Tasmania's forests.[45] It claimed that the defendants conspired with each other to disrupt its business, resulting to interference of contractual relations.[46]
After five (5) years, the Australian Court dismissed the case, ruling that Gunns Ltd.'s statement of claim failed to provide its statement of claim with sufficient clarity.[47] The Court held that the plaintiff failed to comply with Australia's RSC Rule 13.02(I)(a) which requires every pleading to contain a statement of all material facts upon which a party relies, as well as RSC rule 13.10(I) which states that a pleading must contain all necessary particulars of any fact of matter pleaded.[48]
It observed that the unintelligible claims in the complaint made it difficult for the defendants to respond to the allegations against them. The case was finally settled with Gunns Ltd. paying costs to the remaining defendants.[49]
While the Gunns case was pending, an anti-SLAPP law was enacted in Australia. Acknowledging SLAPP suits, the Protection of Public Participation Act 2008 sought "to protect public participation, and discourage certain civil proceedings that a reasonable person would consider [to] interfere with engagement in public participation."[50] Under this law, civil damages may be awarded if it is proven in court that "the defendant's conduct is public participation and the proceeding is started or maintained against the defendant for an improper purpose."[51]
In our jurisdiction, our anti-SLAPP rule is narrowly applied only to environmental cases. While there are provisions in our Civil Code against individuals who impair the exercise of free speech, right to peaceful assembly to petition the government, and freedom of access to courts, there is a lack of direct reference to SLAPP elsewhere in our legal system.[52]
The Supreme Court incorporated an anti-SLAPP provision in the Rules of Procedure for Environmental Cases having in mind the proliferation of SLAPP suits on environmental concerns.[145] We have adopted the Oregon view that SLAPP suits may be invoked not only against the government but also against private parties.[53]
Similar to its precursors, the anti-SLAPP provision under the Rules is founded on the Constitutional rights to freedom of speech and expression, freedom of assembly, and the right to petition the government for redress of grievances.[54] Owing to its application to environmental concerns, the provision is also hinged on the Constitutional right to balanced and healthful ecology. Thus:
Article III, Section 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.[55]Article II, Section 16. The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature.[56]
The Supreme Court adopted the defense of SLAPP to give ample protection to parties advocating environmental protection. In including an anti-SLAPP provision, the Supreme Court recognized the egregious reality that SLAPP suits are present in Philippine environmental law litigation and that these frivolous cases are being used to financially burden petitioning parties. Our anti-SLAPP remedy in the Rules aims to encourage public participation to forward environmental law as well as to deter the chilling effect of SLAPP litigation.[57]
Our Rules define SLAPP in the following sections:
RULE 1
Section 4. Definition of Terms.
…
(g) Strategic Lawsuit Against Public Participation (SLAPP) refers to an action whether civil, criminal or administrative, brought against any person, institution or any government agency or local government unit or its officials and employees, with the intent to harass, vex, exert undue pressure or stifle any legal recourse that such person, institution or government agency has taken or may take in the enforcement of environmental laws, protection of the environment or assertion of environmental rights.[58]
RULE 6
Strategic Lawsuit Against Public Participation
Section 1. Strategic Lawsuit Against Public Participation (SLAPP). — A legal action filed to harass, vex, exert undue pressure or stifle any legal recourse that any person, institution or the government has taken or may take in the enforcement of environmental laws, protection of the environment or assertion of environmental rights shall be treated as a SLAPP and shall be governed by these Rules.[59]
The anti-SLAPP provision applies to harassment suits for damages filed against persons as retaliation for the latter's recourse on environmental concerns. These actions do not forward any genuine cognizable interest but are only used to oppose the resolution of environmental actions.[60]
In Mercado v. Lopena, the High Court emphasized that SLAPP "is set up as a defense in those cases claimed to have been filed merely as a harassment suit against environmental actions." SLAPP is a privilege provided in procedural rules. Thus, to properly put up this defense, it must be invoked in the same action and before the same court.[61]
In a SLAPP suit involving environmental laws and rights, a defendant must raise the affirmative defense of SLAPP along with the supporting evidence and pray for damages by way of counterclaim. Under Rule 6, Section 2 of the Rules:
Section 2. SLAPP as a defense; how alleged. – In a SLAPP filed against a person involved in the enforcement of environmental laws, protection of the environment, or assertion of environmental rights, the defendant may file an answer interposing as a defense that the case is a SLAPP and shall be supported by documents, affidavits, papers and other evidence; and, by way of counterclaim, pray for damages, attorney's fees and costs of suit.
The court shall direct the plaintiff or adverse party to file an opposition showing the suit is not a SLAPP, attaching evidence in support thereof, within a non-extendible period of five (5) days from receipt of notice that an answer has been filed.
The defense of a SLAPP shall be set for hearing by the court after issuance of the order to file an opposition within fifteen (15) days from filing of the comment or the lapse of the period.[62]
In alleging the defense of SLAPP, the following conditions must concur: (1) the defendant has taken or may take a legal recourse in the enforcement of environmental laws, protection of the environment, or assertion of environmental rights; (2) a legal action is filed against this person, whether civil, criminal, or administrative; and (3) the action was filed to harass, vex, exert due pressure, or stifle the legal recourse of the defendant.[63]
Since a motion to dismiss is prohibited in environmental cases,[64] SLAPP may be raised as an affirmative defense by the defendant in its answer. The defendant may likewise pray for damages, attorney's fees, and costs of suit by way of counterclaim.[65] When the defense of SLAPP is raised, the plaintiff is ordered to file an opposition to show that it is not.[66]
The hearing on the defense of a SLAPP is summary in nature and the defendant must show that its acts for enforcement of environmental law is a legitimate action for the protection, preservation, and rehabilitation of the environment. On the other hand, the plaintiff must prove by preponderance of evidence that the action is valid, and not a SLAPP.[67]
When the action is dismissed for being a SLAPP, the court may award damages, attorney's fees, and costs of suit in favor of the defendant.[68] To deter parties from filing SLAPP, the rules allow the award of compensatory and punitive damages, reasonable costs, and attorney's fees to defendants. The award of these costs will not only disincentivize SLAPP, but it will also defray the costs of excess litigation.[69]
[1] Also called Strategic Legal Action Against Public Participation.
[2] George W. Pring, et al., SLAPPS: Strategic Lawsuits Against Public Participation, 7 Pace Environmental Law Review, 4 (1989).
[3] Penelope Canan, et al., Studying Strategic Lawsuits against Public Participation: Mixing Quantitative and Qualitative Approaches, 22 LAW AND SOCIETY REVIEW, 385 (1988); see also Thalia Anthony, Quantum of strategic litigation-quashing public participation, 14(2) AUSTRALIAN JOURNAL OF HUMAN RIGHTS, 3 (2009).
[4] Thalia Anthony, Quantum of strategic litigation - quashing public participation, 14(2) Australian Journal of Human Rights, 3 (2009).
[5] George W. Pring, et al., SLAPPS: Getting Sued for Speaking Out, 10 (1st ed., 1996); Alice Glover, et al., SLAPP Suits: A First Amendment Issue and Beyond, 21 NORTH CAROLINA CENTRAL LAW REVIEW, 124 (1995).
[6] Id.
[7] George W. Pring, et al., SLAPPS: Getting Sued for Speaking Out, 29 (1st ed., 1996).
[8] J. Reid Mowrer, Protection of the Public Against Litigious Suits ("PPALS"): Using 1993 Federal Rule 11 to Turn SLAPPs Around, 38 NATURAL RESOURCES JOURNAL, 466-467 (1998).
[9] Id. at 469.
[10] Alice Glover, et al., SLAPP Suits: A First Amendment Issue and Beyond, 21 NORTH CAROLINA CENTRAL LAW REVIEW, 126 (1995).
[11] Douglas W. Vick, et al., Public Protests, Private Lawsuits, and the Market: The Investor Response to the McLibel Case, 28 JOURNAL OF LAW AND SOCIETY, 207 (2001).
[12] Katelyn E. Saner, Getting SLAPP-ed in Federal Court: Applying State Anti-SLAPP Special Motions to Dismiss in Federal Court After Shady Grove, 63 DUKE LAW JOURNAL, 789 (2013); George W. Pring, et al., SLAPPS: Getting Sued for Speaking Out, 40 (1st ed., 1996).
[13] George W. Pring, et al., SLAPPS: Strategic Lawsuits Against Public Participation, 7 PACE ENVIRONMENTAL LAW REVIEW, 28 (1989).
[14] Id. at 88, citing the First Amendment of the United States Constitution, which provides:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
[15] George W. Pring, et al., SLAPPS: Strategic Lawsuits Against Public Participation, 7 PACE ENVIRONMENTAL LAW REVIEW, 10 (1989).
[16] Robert Abrams, Strategic Lawsuits Against Public Participation (SLAPP) Address, 7 PACE ENVIRONMENTAL LAW REVIEW, 33-34 (1989).
[17] George W. Pring, et al., SLAPPS: Strategic Lawsuits Against Public Participation, 7 PACE ENVIRONMENTAL LAW REVIEW, 11-12 (1989).
[18] George W. Pring, et al., SLAPPS: Getting Sued for Speaking Out, 30-45 (1st ed., 1996); Thalia Anthony, Quantum of strategic litigation - quashing public participation, 14(2) AUSTRALIAN JOURNAL OF HUMAN RlGHTS, 4 (2009).
[19] George W. Pring, et al., SLAPPS: Strategic Lawsuits Against Public Participation, 7 PACE ENVIRONMENTAL LAW REVIEW, 7 (1989); Alice Glover, et al., SLAPP Suits: A First Amendment Issue and Beyond, 21 NORTH CAROLINA CENTRAL LAW REVIEW, 123 (1995).
[20] George W. Pring, et al., SLAPPS: Strategic Lawsuits Against Public Participation, 7 PACE ENVIRONMENTAL LAW REVIEW, 5 (1989); J. Reid Mowrer, Protection of the Public Against Litigious Suits ("PPALS"): Using 1993 Federal Rule 11 to Turn SLAPPs Around, 38 NATURAL RESOURCES JOURNAL, 471 (1998).
[21] George W. Pring, et al., SLAPPS: Strategic Lawsuits Against Public Participation, 7 PACE ENVIRONMENTAL LAW REVIEW, 5 (1989).
[22] Id. at 7.
[23] George W. Pring, et al., SLAPPS: Getting Sued for Speaking Out, 150-151 (1st ed., 1996).
[24] George W. Pring, et al., SLAPPS: Strategic Lawsuits Against Public Participation, 7 PACE ENVIRONMENTAL LAW REVIEW, 8 (1989).
[25] J. Reid Mowrer, Protection of the Public Against Litigious Suits ("PPALS"): Using 1993 Federal Rule 11 to Turn SLAPPs Around, 38 NATURAL RESOURCES JOURNAL, 476 (1998).
[26] J. Reid Mowrer, Protection of the Public Against Litigious Suits ("PPALS"): Using 1993 Federal Rule 11 to Turn SLAPPs Around, 38 NATURAL RESOURCES JOURNAL, 476-477 (1998); Theodore C. Hirt, A Second Look at Amended Rule 11, 48 AMERICAN UNIVERSITY LAW REVIEW, 1010 (1999).
[27] Gary J. Saalman, Rule 11 in the Constitutional Case, 63 NOTRE DAME LAW REVIEW, 791-792 (1988).
[28] J. Reid Mowrer, Protection of the Public Against Litigious Suits ("PPALS"): Using 1993 Federal Rule 11 to Turn SLAPPs Around, 38 NATURAL RESOURCES JOURNAL, 480 (1998).
[29] Douglas W. Vick, et al., Public Protests, Private Lawsuits, and the Market: The Investor Response to the McLibel Case, 28 JOURNAL OF LAW AND SOCIETY, 208 (2001).
[30] Revised Code of Washington: Title 4 Civil Procedure, sec. 4.24.500-4.24.520 provide:
Section 4.24.500. Good faith communication to government agency—Legislative findings— Purpose.
Information provided by citizens concerning potential wrongdoing is vital to effective law enforcement and the efficient operation of government. The legislature finds that the threat of a civil action for damages can act as a deterrent to citizens who wish to report information to federal, state, or local agencies. The costs of defending against such suits can be severely burdensome. The purpose of RCW 4.24.500 through 4.24.520 is to protect individuals who make good-faith reports to appropriate governmental bodies.
Section 4.24.510. Communication to government agency or self-regulatory organization—Immunity from civil liability.
A person who communicates a complaint or information to any branch or agency of federal, state, or local government, or to any self-regulatory organization that regulates persons involved in the securities or futures business and that has been delegated authority by a federal, state, or local government agency and is subject to oversight by the delegating agency, is immune from civil liability for claims based upon the communication to the agency or organization regarding any matter reasonably of concern to that agency or organization. A person prevailing upon the defense provided for in this section is entitled to recover expenses and reasonable attorneys' fees incurred in establishing the defense and in addition shall receive statutory damages often thousand dollars. Statutory damages may be denied if the court finds that the complaint or information was communicated in bad faith.
Section 4.24.520. Good faith communication to government agency—When agency or attorney general may defend against lawsuit—Costs and fees.
In order to protect the free flow of information from citizens to their government, an agency receiving a complaint or information under RCW 4.24.510 may intervene in and defend against any suit precipitated by the communication to the agency. In the event that a local governmental agency does not intervene in and defend against a suit arising from any communication protected under chapter 234, Laws of 1989, the office of the attorney general may intervene in and defend against the suit. An agency prevailing upon the defense provided for in RCW 4.24.510 shall be entitled to recover costs and reasonable attorneys' fees incurred in establishing the defense. If the agency fails to establish the defense provided for in RCW 4.24.510, the party bringing the action shall be entitled to recover from the agency costs and reasonable attorney's fees incurred in proving the defense inapplicable or invalid.
[31] California Code of Civil Procedure, sec. 425.16 provides:
(a) The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, this section shall be construed broadly.
(b)(1) A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.
....
(e) As used in this section, "act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue" includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.
[32] See Colorado Revised Statutes, sec. 13-20-1101, Indiana Code sec. 34-7-7-1, Louisiana Code of Civil Procedure art. 971, Nevada Revised Statutes, sec. 41.635-41.670, Oregon Revised Statutes sec. 31.150- 31.155, Oklahoma Citizens Participation Act, sec. 12-1430.
[33] Pennsylvania Consolidated Statutes, sec. 8302 provides:
Section 8302. Immunity. (a) General rule. — Except as provided in subsection (b), a person that, pursuant to Federal or State law, files an action in the courts of this Commonwealth to enforce an environmental law or regulation or that makes an oral or written communication to a government agency relating to enforcement or implementation of an environmental law or regulation shall be immune from civil liability in any resulting legal proceeding for damages where the action or communication is aimed at procuring favorable governmental action.
[34] Michaelin Scott, et al., Strategic Lawsuits Against Public Participation: The British Columbia Experience, 19 REVIEW OF EUROPEAN COMMUNITY & INTERNATIONAL ENVIRONMENTAL LAW, 47 (2010).
[35] Id. at 48.
[36] Id.
[37] Id.
[38] Id. at 49.
[39] British Columbia Protection of Public Participation Act, Chapter 19, sec. 2 provides:
The purposes of this Act are to (a) encourage public participation, and dissuade persons from bringing or maintaining proceedings or claims for an improper purpose, by providing
...
(b) preserve the right of access to the courts for all proceedings and claims that are not brought or maintained for an improper purpose.
[40] British Columbia Protection of Public Participation Act, Chapter 19, sec. 5(2) provides:
(2) If, on an application brought by a defendant under section 4 (1), the defendant satisfies the court under subsection (1) of this section in relation to the proceeding or in relation to a claim within the proceeding,
(a) the defendant may obtain one or both of the following orders:
(i) an order dismissing the proceeding or claim, as the case may be;
(ii) an order that the plaintiff pay all of the reasonable costs and expenses incurred by the defendant in relation to the proceeding or claim, as the case may be, including all of the reasonable costs and expenses incurred by the defendant in pursuing rights or remedies available under or contemplated by this Act in relation to the proceeding or claim, and
(b) the court may, in addition to the orders referred to in paragraph (a), on its own motion or on the application of the defendant, award punitive or exemplary damages against the plaintiff.
[41] Ontario Protection of Public Participation Act, sec. 137.1 (3) which provides:
(3) On motion by a person against whom a proceeding is brought, a judge shall, subject to subsection, (4) dismiss the proceeding against the person if the person satisfies the judge that the proceeding arises from an expression made by the person that relates to a matter of public interest.
[42] Thalia Anthony, Quantum of strategic litigation - quashing public participation, 14(2) AUSTRALIAN JOURNAL OF HUMAN RIGHTS, 4 (2009).
[43] Id. at 13.
[44] Gunns Ltd v. Marr, 2009 VSC 284.
[45] Id.
[46] Id.
[47] Id.
[48] Id.
[49] Id.
[50] Australia Protection of Public Participation Act of 2008, sec. 5.
[51] Australia Protection of Public Participation Act of 2008, sec. 9.
[52] Civil Code, art. 32, sec. 2, 13, 19, which provides:
Article 32. Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages:
...
(2) Freedom of speech;
...
(13) The right to take part in a peaceable assembly to petition the Government for redress of grievances;
...
(19) Freedom of access to the courts.
In any of the cases referred to in this article, whether or not the defendant's act or omission constitutes a criminal offense, the aggrieved party has a right to commence an entirely separate and distinct civil action for damages, and for other relief. Such civil action shall proceed independently of any criminal prosecution (if the latter be instituted), and may be proved by a preponderance of evidence.
[53] A.M. No. 09-6-8-SC, Rationale to the Rules of Procedure for Environmental Cases, p. 87.
[54] Id. at 88-89.
[55] A.M. No. 09-6-8-SC, Annotation to the Rules of Procedure for Environmental Cases, p. 130.
[56] CONSTI., art. III, sec. 4.
[57] CONSTI., art. II, sec. 16.
[58] A.M. No. 09-6-8-SC, Rationale to the Rules of Procedure for Environmental Cases, pp. 87-88.
[59] A.M. No. 09-6-8-SC, Rule 1, sec. 4(g).
[60] A.M. No. 09-6-8-SC, Rule 6, sec. 1.
[61] A.M. No. 09-6-8-SC, Annotation to the Rules of Procedure for Environmental Cases, p. 87.
[62] Mercado v. Lopena, G.R. No. 230170, June 6, 2018, <http://elibrary.judiciary.gov.ph/thebookshelf/showdocs/1/64395> [Per J. Caguioa, Second Division].
[63] A.M. No. 09-6-8-SC, Rule 6, sec. 2.
[64] A.M. No. 09-6-8-SC, Rule 1, sec. 4(g).
[65] A.M. No. 09-6-8-SC, Rule 2, sec. 2(a) provides:
Section 2. Prohibited Pleadings or Motions. — The following pleadings or motions shall not be allowed:
(a) Motion to dismiss the complaint;
[66] A.M. No. 09-6-8-SC, Rule 6, sec. 2.
[67] Id.
[68] A.M. No. 09-6-8-SC, Rule 6, sec. 3 provides:
Section 3. Summary hearing. — The hearing on the defense of a SLAPP shall be summary in nature. The parties must submit all available evidence in support of their respective positions. The party seeking the dismissal of the case must prove by substantial evidence that his act for the enforcement of environmental law is a legitimate action for the protection, preservation and rehabilitation of the environment. The party filing the action assailed as a SLAPP shall prove by preponderance of evidence that the action is not a SLAPP and is a valid claim.
[69] Id.
[70] A.M. No. 090-6-8-SC, Rationale to the Rules of Procedure for Environmental Cases, p. 94-95.