By Lucille Reece
At its best, the legal system operates as an agent of justice and guides parties toward a fair resolution. At its worst, it can be used as a tool to advance the interests of powerful actors with little regard for procedural or substantive fairness. Even more dangerous is where legal proceedings have the effect of widely chilling free speech, restricting the activity of journalists and activists, and even hindering the effective operation of democracy.
There is a name for the specific phenomenon of civil litigation embarked upon with the intent of silencing those who have spoken out on a matter of public interest: the SLAPP. A term first coined by University of Denver Professors George W. Pring and Penelope Canan in the 1980s, SLAPP stands for "Strategic Lawsuits Against Public Participation" and is a useful designation for civil claims that, at their essence, have the effect of unduly silencing those who have contributed to public discourse.
The typical SLAPP will involve the retaliatory use of litigation by powerful individuals or corporations against weaker opponents with the intent of stemming the source of negative publicity. Commonly, SLAPPs will target journalists, environmentalists, and academics.
The SLAPP plaintiff will often intend to burden the defendant to the extent that they, and others who share their views, abandon their opposition and are deterred from voicing criticism in future. While defamation, copyright infringement and nuisance are causes of action commonly utilised by the SLAPP plaintiff, the lawsuits may take any form.
Unsurprisingly, SLAPPs are a source of major concern amongst civil society groups, government organisations and general proponents of media freedom. SLAPPs can undermine the integrity of the justice system, waste valuable judicial resources and constrain the fluid operation of the marketplace of ideas.
A particularly chilling example of a SLAPP target is that of Daphne Caruana Galizia, a Maltese investigative journalist who was assassinated in 2017. At the time of her death, Galizia was facing over 40 libel suits in relation to her reporting on corruption within the Maltese government and, most famously, the Panama Papers.
To counter such unrestrained abuse of the legal system by SLAPP plaintiffs, several countries have now legislated against the phenomenon. "Anti-SLAPP" legislation is generally crafted to strike out SLAPPs at any early stage of proceedings, with the intent of minimising the chilling of free speech. Anti-SLAPP legislation can be found in the United Kingdom, over thirty US states, the Australian Capital Territory, two Canadian provinces and, following the European Parliament's adoption of its Anti-SLAPP directive on 27 February 2024, the European Union (EU).
It was Galizia’s 2017 assassination that sparked widespread condemnation of the rise in vexatious lawsuits across Europe, and which has now culminated in the new EU directive - colloquially referred to as “Daphne’s law”.
Heralded as a watershed moment for media freedom in Europe, the directive's adoption imposes minimum standards on EU member states. However, as the anti-SLAPP mechanism may be utilised only when the dispute in question has "cross-border" implications – that is, where the parties to the dispute are each from different member states - the responsibility now falls to EU member states to enact domestic anti-SLAPP legislation. Accordingly, expansive protection for public interest speech across Europe remains a policy question for member state governments.
New Zealand is yet to enact any bespoke legislation targeting SLAPPs and there has been little domestic discourse on the phenomenon. As such, New Zealand defendants who wish to have claims dismissed on the basis of their frivolity or vexatiousness must rely on the abuse of process doctrine which, due to its high threshold for satisfaction, is seldom successfully invoked.
As New Zealand is yet to see its first high-profile SLAPP case, it is unlikely that anti-SLAPP reform will become a political priority in the near future. However, following the recent EU support for such measures, the time may be nigh for New Zealand policymakers to emulate their European counterparts and begin considering the formation of a domestic anti-SLAPP regime.
Indeed, even one instance of a true SLAPP in New Zealand is, surely, too many.
Lucille Reece
Lucille Reece practises as a projects and real estate lawyer at Bell Gully. In 2023, her LLB(Hons) dissertation on SLAPPs, which explores the need for bespoke anti-SLAPP legislation in New Zealand, was cited by the Employment Court of New Zealand in Halse v Employment Relations Authority, marking one of the first uses of the term SLAPP by a New Zealand court.
This article is the author’s own work and does not necessarily represent the views of Bell Gully or any of its clients.
