Taking the sting out of SLAPPs? A comparative analysis of anti-SLAPP statutes against a human rights framework

Sammanfattning

Strategic lawsuits against public participation (SLAPPs) deploy litigation to suppress political rights – especially public participation rights and freedoms of expression, assembly and association. The rights of journalists, human rights defenders, civil society organisations and individuals are chilled by these cases and legal threats, which convert matters of public interest into private disputes. Anti-SLAPP statutes, which use civil procedure to dispose of these cases at an early stage or provide financial remedies to SLAPP defendants, are an increasingly popular response to this problem. One core aspect of these statutes is how they will identify SLAPPs (as opposed to ordinary legal cases) through a preliminary motion. In IHRL, three broad characteristics have been identified as guidance for identifying a SLAPP: a power imbalance between the parties, a subject-matter linked to the public interest, and abusive legal tactics used by the plaintiff. This thesis compares how these characteristics are assessed under four examples of anti-SLAPP statutes and considers what the scope of these tests means for the human rights protections offered by these statutes. The purpose sections of anti-SLAPP statutes often refer to the protection of human rights such as freedom of expression and public participation. Likewise, IHRL experts are increasingly calling for anti-SLAPP statutes to protect rights in a range of contexts ranging from anti-corruption to the protection of environmental human rights defenders. Despite the attention of human rights experts and the rights-based justifications behind these statutes, the application of these statutes in court has not been assessed for its human rights implications. Four pieces of legislation have been selected for comparison: the Protection of Public Participation Act 2015 in Ontario (adopted in identical form in British Columbia), the 2020 amendment to New York’s Civil Rights Law, the Protection of Public Participation Act 2008 in the Australian Capital Territory, and the Economic Crime and Corporate Transparency Act 2023 in the United Kingdom. The jurisdictions selected all derive from the English common law and include the tort of defamation, which is a common vehicle for SLAPPs. Because SLAPPs use the justice system, the thesis compares not only the legislative provisions but how they have been applied by courts. Leading cases and illustrative examples were identified by searching for the relevant sections of each piece of legislation. Three characteristics of a SLAPP – a power imbalance between the parties, a subject-matter linked to the public interest, and abusive legal tactics used by the plaintiff – are the points of comparison between these statutes. This thesis finds that more attention to the characteristics of a SLAPP could improve the human rights protection under these statutes. Without attention to all these signs of a SLAPP, statutes do not enable courts to fully appreciate the chilling effect of legal cases on human rights. The thesis concludes with three recommendations for the scope of future anti-SLAPP statutes: required consideration of the power imbalance between the parties and abusive legal tactics used by the plaintiff; a power for courts to declare a case is a SLAPP; and a broad public interest test which captures conduct as well as expression.