It was one of the last panels at Ryerson University’s Press Freedom in Canada conference, but by no means was it the least fascinating.
In a session called “Privacy, libel and intimidation: Press freedom and the strong arm of the law” on March 9, conversation between professors Tim Currie of the University of King’s College, and Normand Landry, from the University of Quebec, ranged from social media to the Canadian Charter of Rights and Freedoms. Ryder Gilliland, media lawyer and Ryerson adjunct professor, moderated.
Currie focused on tweeting and the ease with which journalists can get it wrong on the social media site. “Twitter lacks the heft of deliberation,” he said, and for this reason, he called it “very messy.”
Twitter doesn’t have a native corrections tool, which Currie said would be hugely beneficial for journalists who are too fast with their fingers and tweet incorrect information.
Currie offered tips on using Twitter wisely: don’t tweet something potentially libelous in the heat of the moment, do background research if you do want to tweet something contentious and link to libelous content, don’t repeat it. These pointers are undoubtedly useful for any journalist – student or otherwise. But the most enlightening moment was when Landry began to talk about SLAPPs.
SLAPPs — or, strategic lawsuits against public participation — are exactly what their name implies. When a corporation launches a suit against a small enterprise like a publishing company, journalist or author (often for defamation), this can be an underhanded attempt to silence said entity, thereby suppressing press freedom.
It’s an unfair battle – a big-bucks company using intimidation to beat a smaller one into submission. SLAPPs also have a chilling effect on other writers and publishers.
“They are actually very efficient to gag a private enterprise,” Landry said in an interview.
He told the audience of an instance, in 2008, when mining company Barrick Gold sued the authors and publisher of Canada Noir: pillage, corruption et criminalité en Afriquefor millions of dollars. The book explored the effects of the mining industry on Africa, and criticized Barrick Gold and other companies.
Barrick Gold claimed the allegations were false. In 2011, the case settled out of court, with the publisher agreeing to cease Canada Noir’s publication.
Landry said this case has all the characteristics of a SLAPP, although no tribunals in Quebec ruled that it was, in fact, one. (“You have to be very, very careful,” said Landry, in identifying a lawsuit as a SLAPP. “You can get sued yourself.”)
He said most people assume the Charter protects the media from these lawsuits, but that’s not the case.
Yes, the Charter guards freedoms including that of the press, but this protection applies to governments’ treatment of citizens. “It’s not a tool to protect citizens against each other,” Landry said.
Because of this, activists across Canada have been pushing for specific anti-SLAPP legislation, but right now, it only exists in Quebec.
It seems Ontario, though, may be considering enacting these types of laws. In 2009, Environmental Commissioner Gord Miller released his annual report, which addressed SLAPPs and the negative impact they have on public participation:
“The public’s right to participate in decision-making over matters of public interest is a cornerstone of our democratic system. Efforts aimed at suppressing this right should be discouraged by the Ontario Legislature and other public agencies. The ECO sees a need for provincial legislation that would put both sides of development disputes on equal footing. Such legislation could serve to halt SLAPP suits in their tracks.”
The following year, an expert panel also recommended anti-SLAPP legislation in a report to Ontario’s attorney general.
Landry spoke about these promising sentiments at the panel, but expressed dismay that the province hasn’t acted on the recommendations yet. “We’re waiting for a true and real political will to move forward on the issue,” he said.
Canada’s anti-SLAPP legislation pales to that of the United States.
Candice Vallantin writes in The Walrus that “twenty-eight states have some kind of SLAPP protection, and many others are considering similar measures. California’s legislation is the most renowned; if judges find that cases have the effect of stifling public debate, they can be thrown out — and the plaintiffs can be fined.”
Most SLAPP suits, Landry said, don’t go to trial because they’re settled out of court. As a result, SLAPPs aren’t publicized and people don’t know much about them. This only “encourages their abusive litigation,” he said.
At the conference wrap-up, Ivor Shapiro asked if the audience knew that Ontario has been deliberating over anti-SLAPP legislation for the past two years. A few did. Most did not. (I’d never even heard of SLAPPs before.) Clearly, the media must do a better job of informing the public about the significant threat to press freedom these lawsuits pose.