Strategic continuation against the public mobilization

Qualified in right of North America, a strategic continuation against the public mobilization is an legal action aiming at blocking the political participation and the militancy. It is generally about a defamatory civil continuation for Libelle, brought against an individual or an organization having taken party within the framework of a public stake. The concept also includes the threats of continuation, because the success of such an operation does not rise as well from a victory in front of the courts as of the process itself, aiming to intimidate the defendant part or to financially exhaust it with an aim of reducing it to silence.

Thus, feeling sorry for it will be generally caught some at individuals isolated or organizations from small size, and will hold up the threat of completely disproportionate damages compared to the wrong which is allegedly caused to him. If the threats do not have the wished effect, of the legal procedures will be started, which will have the effect to transform a public stake into private litigation. All the financial and human resources of the defendant will then be monopolized by his defense, with the detriment of the promotion of the socio-economic, environmental or cultural cause which is due to him in heart.

The procedures are often abandoned when they achieved their goal to paralyze the defendant politically. Moreover, good number of case being limited to the threats of continuation are never reported (or are to it several years after the facts), which makes an evaluation exact of the extent of the very difficult phenomenon.

Related acronyms and terms

The use of the acronym SLAPP ( Strategic Lawsuit Against Public Participation) is generalized in the anglophone countries. The “public participation” of which it is made mention must be understood by “participation of the public with the democratic life”. In Quebec, the acronym IBP (muzzle imposed on the public word) was proposed to copy its during origin states-unienne. In English, slap means “slap”, whereas “beep” is a Onomatopée which suggests the Censure in the audio-visual mediums. With the the United States, the term SLAPPback (slap in return) is associated with the many against-continuations or counterclaims brought by the individuals and groups estimating itself injured by the initial continuations.

In Quebec, one also indicates the appearance, at the summer 2007, of the terms continuation-muzzle and injunction-muzzle in the French-speaking press, whereas the Québécois Office of the French language disadvises the use of the term “continuation abusive”, juridically incorrect.

History

The concept was formulated in 1988 by the researchers of Université of Denver Penelope Canan and George W. Pring. It was limited at the time only to the civil continuations really brought against individuals and to lobbies trying to promote a cause of public interest near elected officials or governmental authorities.

Legal context

The strategic continuations are generally brought in liberal Démocraties with the strongly developed legal system, and where exist already protection measures of the right of the person. (When major socio-economic projects are initiated in dictatorial modes, it is obvious that arbitrary detention, and even the physical elimination of the people being opposed are more expeditious “solutions to it”.)

Articulation with the rights of the person

The concept as formulated in the beginning is closely related on the Freedom of expression and the Droit of petition guaranteed by the first amendment of the Constitution of the United States of America. However, the constitutional protection measures can vary from a country with another, as well in their formulation as in their range. Consequently, the terminology of the International law can be useful:

the mechanism of the strategic continuations raises the question of the application of the civil laws and political. In addition to the Freedom of expression, the equality in front of the courts is directly causes some, since the disproportion of financial means between the parts - always in favor of the plaintiffs - is an essential component of the phenomenon.
the individuals or organizations which are the object of strategic continuations generally defend of the causes associated with the broader category of the economic rights, social and cultural. The defense groups of the environment among are most frequently targeted.

Political context

The strategic continuations are a symptom of the new form of “triangular” Gouvernance exit of the reforms néolibérales and economic Mondialisation. In other words, the disengagement of the State several branches of industry caused a rebalancing of the jolty capacities between the two other poles which are, on the one hand, private actors of the capitalist world (of which the transnational firms ) and, on the other hand, of the ONG and coalitions ad hoc resulting from all the levels of the Civil society. The disengagement of the State takes sometimes the form of an incapacity to make apply its own laws, which constrained ONG and public to play the part of “watchdog” of the democratic assets.

In this direction, some advance that the strategic continuations go hand in hand with a media speech increasingly present, according to which these ONG and lobbies harm the Economic development and the Investissement.

Strategic examples of continuations in the world

In the United States

California Anti-SLAPP Project makes an inventory partial of several tens of case; but their real number (including the threats of continuation) rises in the thousands. One of most known is that having opposed stimulating the Oprah Winfrey to the regrouping of stockbreeders Texas Beef Group in 1998. Mrs. Winfrey had expressed on television her concerns as for the safety of ox produced in the United States, following the appearance of the Maladie of the mad cow in the United Kingdom. Texas Beef Group claimed 6,7 million $ in damages to him.

In the United Kingdom

In Canada

A well-known example is the continuation brought by the paper company Daishowa against a group of activists of Toronto called Friends off the Lubicon. This group had undertaken a boycott movement of the papers and paperboards produced by Daishowa near important customers, with the reason which its forest cuts endangered the lifestyle of the Cries of the lake Lubicon, a small indigenous nation of the Alberta. The goal of the countryside was to force Daishowa to cease the forestry development as long as an agreement of division of the grounds would not be signed with the federal government. The permanent injunction required by the paper one as of many reasons for complaint were rejected by the Court of first authority and the Court of Appeal of the Ontario. However, the action for libel was retained and Friends groups it off the Lubicon was condemned to pay a sum symbolic system of a dollar to have used the term Génocide in its posters and folders. The damages initially required by Daishowa rose to 5 million $.

With the Quebec, Fight association against atmospheric pollution (AQLPA) emitted fear publicly to have to cease its activities, following a continuation brought by the company of metal recovery American Iron & Metal (AIM). The AQLPA had obtained an injunction against AIM, after having noted that the firm built a center of shredding of cars without to have obtained license of construction and without to have provided study of environmental impact to the competent authorities. AIM pled the existence of a plot between the AQLPA and a firm of concurrent metal recovery, and claimed 5 million $ in damages. The AQLPA retorted by a against-continuation ( SLAPPback ). At the same time, with Sherbrooke, the company of composting Ferti-valley continued Sebastien Lussier, spokesperson of the neighbors of the company, for 700.000 $ after this one was indignant at the nauseous odors which emanated from it. Ferti-valley itself was prosecuted by the town of Sherbrooke to have contravened a local by-law. Against any waiting, Ferti-valley pled finally guilty at the very last minute and withdrew its continuation against Mr. Lussier.

Anti-SLAPP legislation

The procedure rules civil of many States provide that the court can draw aside from the start any frivolous or abusive recourse. However, the complaints as regards slandering cannot be isolated since exists an appearance of cogency in right. Moreover, in Common law, slandering is a civil offense of strict responsibility. The author of a declaration is held responsible for his exactitude. The defendant engages his responsibility since it publicly holds of the remarks that the plaintiff estimates defamatory. That makes the defense much more complex and expensive, which shows besides the Affaire McLibel.

For this reason the principal components of the anti-SLAPP laws are: 1) a clear definition allowing to identify the strategic continuations; 2) a mechanism allowing to return an end to them not-to receive on summary request; 3) an advance for expenses poured by the plaintiff, or any other form of financial equalization in favor of the defendant; and 4) automatic establishment of a relative immunity when the defendant raises a question of public interest.

With the the United States, the State of Washington was the first to adopt such a law in 1989. In July 2006, California Anti-SLAPP Project counted 24 States and a territory having made in the same way.

With the Canada , only the Colombia-British briefly obtained an anti-SLAPP law, since the first cases identified in this country were it in this province. The Protection off Public Participation Act , adopted in April 2001 under the government néo-democrat, was quickly abolished in August of the same year, following the electoral victory of the Liberal party.

External bonds

Susan Lott, Corporate Retaliation Against Consumers: The Status off Strategic Lawsuits Against Public Participation (SLAPPs) in Canada, Public Interest Advocacy Centers, September 30th, 2004. (French Synopsis.)
Citoyens you conceal! (Campaign support to the AQLPA and for the adoption of an anti-SLAPP law for Quebec.)

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