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Strategic lawsuit against public participation

Litigation to intimidate critics

  • 30 min read
  • 4 chapters

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Through Discovery (law), Copyright and Greenpeace

In a typical SLAPP, the plaintiff does not normally expect to win the lawsuit. The plaintiff's goals are accomplished if the defendant succumbs to fear, intimidation, mounting legal costs, or simple exhaustion and abandons the criticism. In some cases, particularly in the context of investigative journalism, repeated frivolous litigation against a defendant may raise the cost of retaining the services of directors and officers and other liability insurance for that party, interfering with an organization's ability to operate. A SLAPP may also intimidate others from participating in the debate. A SLAPP is often preceded by a legal threat. SLAPPs bring about freedom of speech concerns by their chilling effect and are often difficult to filter out and penalize because the plaintiffs attempt to obfuscate their intent to censor, intimidate, or silence their critics.

Characteristics

SLAPP is a form of strategic litigation or impact litigation in which the plaintiff does not have true legal claims but is focused on deterring a message that they do not like. A common feature of SLAPPs is forum shopping, wherein plaintiffs find courts that are more favourable towards the claims to be brought than the venue in which the defendant (or sometimes plaintiffs) live.

Other widely mentioned elements of a SLAPP are the actual effectiveness at silencing critics, timing of the suit, inclusion of extra or spurious defendants (such as relatives or hosts of legitimate defendants), inclusion of plaintiffs with no real claim (such as corporations that are affiliated with legitimate plaintiffs), making claims that are very difficult to disprove or rely on no written record, ambiguous or deliberately distorted wording that lets plaintiffs make spurious allegations without fear of perjury, refusal to consider any settlement (or none other than cash), characterization of all offers to settle as insincere, extensive and unnecessary demands for discovery, attempts to identify anonymous or pseudonymous critics, appeals on minor points of law, and demands for broad rulings when appeal is accepted on such minor points of law. In some instances it is clear that plaintiffs are attempting to drain defendants of their financial resources by making the lawsuit as costly as possible, and in these cases the plaintiff's motive may not be legal victory, but merely to waste the defendant's time and money.

When SLAPPs involve copyright law, they can be considered a type of censorship by copyright.

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