anti-slapp.html.pm

#lang pollen

◊define-meta[page-title]{BC's anti-SLAPP legislation}
◊define-meta[original-date]{2019-02-20}
◊define-meta[edited-date]{2019-04-29}
◊define-meta[featured-image-url]{assets/anti-slapp.png}
◊define-meta[snippet]{BC's forthcoming anti-SLAPP legislation: a review}

◊declare-work[#:type "legal-case-US" #:title "Tobinick v Novella"
#:url "https://caselaw.findlaw.com/us-11th-circuit/1780876.html"
#:citation "No 15-14889" #:jurisdiction "11th Cir" #:year "2017" #:id
"Tobinick"]

◊declare-work[#:type "bill" #:number "2" #:title "Protection of
Public Participation Act" #:legislative-body "4th Sess, 41st Leg,
British Columbia" #:year "2019" #:url
"https://www.leg.bc.ca/content/data%20-%20ldp/Pages/41st4th/1st_read/gov02-1.htm"
#:id "BC PPPA" #:short-form "BC *PPPA*"]

◊declare-work[#:type "statute" #:title "Protection of Public
Participation Act" #:volume "SO" #:year "2015" #:chapter "23" #:url
"https://www.ontario.ca/laws/statute/S15023" #:id "ON PPPA"
#:short-form "ON *PPPA*"]

◊declare-work[#:type "debate" #:title "Bill C-32, Protection of Public
Participation Act" #:reading "1st reading" #:jurisdiction "British
Columbia" #:proceedings "Official Report of Debates (Hansard)"
#:legislative-body "41-3" #:volume "No 137" #:year "15 May 2018" #:url
"https://www.leg.bc.ca/content/hansard/41st3rd/20180515am-Hansard-n137.pdf"
#:id "1st reading" #:short-form "Bill C-32 (1st reading)"]

◊heading{What is anti-SLAPP legislation?}

The BC government just reintroduced their anti-SLAPP
bill.◊note{Update: the BC Legislature unanimously passed the bill on
March 7, 2019.} SLAPP stands for "strategic litigation against public
participation." These are generally defamation lawsuits that suppress
somebody's speech.

Consider a doctor who writes a blog post that is critical of another
doctor's puffed-up claims regarding the effectiveness of a drug. That
second doctor might try to use a defamation lawsuit in order to coerce
the first doctor (the author of the critical blog post) to back
down. Even if the first doctor would have a valid defence
(e.g. because they've only stated the truth) it can be so costly to
defend oneself that they might think that their only viable option is
to take down the blog.◊note-cite["Tobinick"]

That is a SLAPP. You can find many other stories at ◊a[#:href
"https://anti-slapp.org/slapp-stories"]{anti-slapp.org}.

Anti-SLAPP legislation provides defendants (the speakers/writers) in
these lawsuits with an easy way to get the case dismissed, early on in
the process. This greatly lowers the costs for innocent
speakers. Anti-SLAPP legislation also makes it much more likely that a
defendant who succeeds in an anti-SLAPP motion to have those costs
paid for by the plaintiff.

I'll clarify some terminology that I'll use throughout the article:
◊itemize{

◊b{plaintiff} : the person who brought the original defamation suit / proceedings

◊b{defendant} : the person who made the expression at issue in the defamation suit / proceedings

◊b{proceedings} : that underlying defamation lawsuit

◊b{applicant} : the defendant, who has made (applied for) an anti-SLAPP motion, trying to have the proceedings dismissed

◊b{respondent} : the plaintiff, who is responding to the anti-SLAPP motion, trying to keep the proceedings alive

}

◊heading{BC's Protection of Public Participation Act}

BC's forthcoming anti-SLAPP legislation is in the ◊a[#:href
"https://www.leg.bc.ca/content/data%20-%20ldp/Pages/41st4th/1st_read/gov02-1.htm"]{◊em{Protection
of Public Participation Act}} (BC ◊em{PPPA}).◊note-cite["BC PPPA"]
It's a short read, and written pretty clearly.

This is a re-introduction of last session's Bill 32, which stalled
out, seemingly because of some interest in seeing how ◊a[#:href
"https://www.ontario.ca/laws/statute/S15023"]{Ontario's very similar
act}◊note-cite["ON PPPA"] would play out in their
courts.◊note{◊a[#:href
"https://twitter.com/sobittersosweet/status/1095767698657529856"]{Shannon
Waters}: "I poked at Bill 32 for months, trying to find out why it
stalled. @jjhorgan said BC doesn't want run into the same issues
Ontario did. ◊elide I asked the premier about the bill, he referenced
court challenges in Ontario but the attorney general's ministry would
not confirm what, if any, issues related to Ontario's legislation held
up BC's bill."} The ◊em{BC PPPA} is identical to last session's Bill
32 with one exception: the new version will apply to any proceedings
commenced on or after May 15, 2018 (the date when last session's Bill
32 received first reading). The old version would have had the Act
apply to proceedings commenced "at any time before or after this Act
comes into force." So, the new version is now more like Ontario's
which applies to proceedings "commenced on or after the day the
Protection of Public Participation Act, 2015 received first reading."

◊heading{Highlights and comparisons with other models}

There are very few differences between the BC Act, the Uniform Law
Conference of Canada's ◊a[#:href
"https://www.ulcc.ca/images/stories/2016_pdf_en/2016ulcc0031.pdf"]{◊em{Uniform
Protection of Public Participation Act}}◊note{Uniform Law Conference
of Canada, ◊a[#:href
"https://www.ulcc.ca/images/stories/2016_pdf_en/2016ulcc0031.pdf"]{◊em{Uniform
Protection of Public Participation Act}}, 2017.}, and Ontario's
Act. This is because the ◊em{BC PPPA} is based on the Uniform Act
which is in turn based on the Ontario Act.◊note{◊cite["1st reading"
#:pinpoint "4742"] Or, ◊a[#:href
"https://videoarchive.leg.bc.ca/Harmony/en/PowerBrowser/PowerBrowserV2?viewmode=3&fk=201805151000-house&startposition=957"]{watch
the video}!}

The core provision of each of these acts is essentially
identical.◊note-cite["BC PPPA" #:pinpoint "clause 4(2)(b)"] It
requires the anti-SLAPP applicant (the defendant) to establish first
that the proceedings relate to expression made by the applicant that
relates to a matter of public interest. If the applicant shows this,
then the burden shifts to the anti-SLAPP respondent (the plaintiff) to
convince the judge that the case has sufficient merit and that the
public interest weighs in favour of allowing the proceedings to
continue.

Another essential piece is how costs are handled. If the anti-SLAPP
applicant successfully gets the litigation dismissed, they are
entitled, as a starting point, to full costs in the anti-SLAPP motion
and in the underlying proceeding. And if the court finds that the
plaintiff brought the original proceeding on bad faith, they can award
damages to the anti-SLAPP applicant. On the other hand, if the
anti-SLAPP motion is not successful, and the proceeding is not
dismissed, the anti-SLAPP respondent (the plaintiff) is not entitled
to costs. This is a very defendant-friendly costs
regime.◊note-cite["BC PPPA" #:pinpoint "clauses 7--8"]

BC and Ontario both differ from the Uniform Act regarding what
proceedings they will apply to. The Uniform Act recommends that the
Act apply to any proceedings whenever they were commenced. BC's and
Ontario's both only apply to proceedings commenced after a certain
date.

The ◊em{BC PPPA} requires that "on an application for a dismissal
order under section 4, evidence must be given by affidavit." Neither
the Uniform Act nor Ontario's Act have this restriction, although they
seem to contemplate it, by providing limitations on the time that
parties can spend cross-examining on documentary evidence.

The Uniform Act and Ontario's Act require that the anti-SLAPP motion
be heard within 60 days of filing. The ◊em{BC PPPA} requires that the
anti-SLAPP motion be heard as soon as practicable.

An interesting piece is how anti-SLAPP motions interact with
administrative or tribunal proceedings. Once a defendant has filed an
anti-SLAPP motion, they can use that notice of application to put the
administrative proceeding on hold.◊note-cite["BC PPPA" #:pinpoint
"clause 11"] The Uniform Law Conference explains:

◊q{ This provision aims to give a prospective plaintiff reason to
think carefully before launching a lawsuit against its critics. Often
such a party has some other official proceeding going on, such as an
application for rezoning or a building permit. If that proceeding will
be stayed pending the determination of a motion to dismiss under the
present statute, that potential delay may be more important to the
plaintiff than getting a remedy for the defendant’s expression.  }

There is also something special about Canadian anti-SLAPP legislation
compared to US anti-SLAPP legislation. Canadian legislation tells the
court to ask whether "the harm likely to have been or to be suffered
by the respondent as a result of the applicant's expression is serious
enough that the public interest in continuing the proceeding outweighs
the public interest in protecting that expression."◊note-cite["BC
PPPA" #:pinpoint "clause 4(2)(b)"] In order to proceed after the
defendant has proven their side of an anti-SLAPP motion, the plaintiff
has to convince the court (among other things) that the expression at
issue is causing them serious enough harm to warrant putting that
expression to the test of a full-fledged defamation litigation.

This kind of balancing is not found in the Institute for Justice's
◊a[#:href
"https://ij.org/wp-content/uploads/2015/07/anti-slapp-model.pdf"]{Model
Anti-SLAPP Legislation} (see section 100.6 (1)).

◊heading{What does it mean?}

Again, the ◊a[#:href
"https://www.leg.bc.ca/content/data%20-%20ldp/Pages/41st4th/1st_read/gov02-1.htm"]{◊em{BC
PPPA}} is really short, so do read it, but the main provision is
clause 4:

◊codeblock{

4 (1) In a proceeding, a person against whom the
proceeding has been brought may apply for a dismissal order under
subsection (2) on the basis that

    (a) the proceeding arises from an expression made by the
    applicant, and

    (b) the expression relates to a matter of public interest.

  (2) If the applicant satisfies the court that the proceeding arises
  from an expression referred to in subsection (1), the court must
  make a dismissal order unless the respondent satisfies the court
  that

    (a) there are grounds to believe that

      (i) the proceeding has substantial merit, and

      (ii) the applicant has no valid defence in the proceeding, and

    (b) the harm likely to have been or to be suffered by the
    respondent as a result of the applicant's expression is serious
    enough that the public interest in continuing the proceeding
    outweighs the public interest in protecting that expression.
}

This is pretty much identical to sections 137.1(3) and (4) from
Ontario's Act.

Ontario's Court of Appeal recently had a chance to clarify what all of
this means in ◊a[#:href
"http://www.ontariocourts.ca/decisions/2018/2018ONCA0685.pdf"]{◊em{1704604
Ontario Ltd v Pointes Protection
Association}}.◊note{◊format-work[#:type "legal-case" #:title "1704604
Ontario Ltd v Pointes Protection Association" #:url
"http://www.ontariocourts.ca/decisions/2018/2018ONCA0685.pdf"
#:citation "2018 ONCA 685"]} Because this is an Ontario court's
decision, it doesn't control what BC courts will do, but the Ontario
Court of Appeal's decision will be highly persuasive.

This decision starts with some nice context about SLAPPs and
anti-SLAPP legislation before getting into the details of the
particular case and then interpretation of Ontario's anti-SLAPP
legislation at paragraph 27.

Paragraph 30 is revealing. It explains the genesis of the
harm-balancing provision (4(2)(b), in BC). Ontario's Anti-SLAPP
Advisory Panel observed in its report:

◊q{If an action against expression on a matter of public interest is
based on a technically valid cause of action but seeks a remedy for
only insignificant harm to reputation, business or personal interests,
the action’s negative impact on freedom of expression may be clearly
disproportionate to any valid purpose the litigation might serve.}

The decision also quotes from the Ontario's Attorney General during
the legislative debates:

◊q{I strongly believe that the law must defend reputation, but not at
any cost and not in every case. I do not believe that a mere technical
case---without actual harm---should be allowed to suppress the kind of
democratic expression that is crucial for our democracy.}

This seems to be the crux of an anti-SLAPP motion and I think most of
the work will be done at this balancing stage.

The court also distinguishes the Ontario Act from now-repealed British
Columbia anti-SLAPP legislation from 2001. That 2001 act focused on
the plaintiff's motive or purpose as a determinative factor. Modern
anti-SLAPP legislation based on Ontario's model "instead assesses the
potential merits of the claim and the effects of permitting the claim
to proceed on competing components of the public interest."

The court goes on to split up the anti-SLAPP analysis into stages,
based on the text of the core provision.

◊sub-heading{1. The threshold requirement}

First, the defendant (the anti-SLAPP applicant) needs to establish on
the balance of probabilities that (a) the proceedings arise from
expression made by the defendant, and (b) the expression relates to a
matter of public interest.

"Expression" is defined very broadly in the act: "any communication,
whether it is made verbally or non-verbally, publicly or privately,
and whether it is directed or not directed at a person or entity."

The trickier part is determining whether an expression relates to a
matter of public interest.

Here, the court says that the principles from ◊em{Grant v Torstar
Corp}◊note{◊format-work[#:type "legal-case" #:title "Grant v Torstar
Corp" #:url
"https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/7837/index.do"
#:citation "2009 SCC 61"]} are applicable. The question is to be
answered objectively, in context, and in the entirety of the
communication. An expression might have more than one matter. If one
of those matters is a "matter of public interest", that is enough. It
is enough that "some segment of the community has a genuine interest"
in the matter of the expression. But, that must be more than curiosity
or prurient interest. This also isn't about assessing the impact on
the issue to which it is directed. The judge is not to ask whether the
expression has a beneficial impact on the issue.

The defendant (the anti-SLAPP applicant) needs to show all of that:
that the proceedings arise from their expression relating to a matter
of public interest. If they can do so, then the burden shifts to the
plaintiff to satisfy the judge that their case should go forward
nonetheless. This path has two parts: a merits-based hurdle, and a
harm-balancing hurdle.

◊sub-heading{2a. The merits-based hurdle}

◊codeblock{
(2) If the applicant satisfies the court that the proceeding arises
from an expression referred to in subsection (1), the court must make
a dismissal order unless the respondent satisfies the court that

  (a) there are grounds to believe that

    (i) the proceeding has substantial merit, and

    (ii) the applicant has no valid defence in the proceeding, and
}

The standard here is also a balance of probabilities. The judge needs
to be satisfied that there are reasonable grounds to believe that
there is substantial merit to the claim and that the defendant has no
valid defence. The court emphasizes that this is just judicial
screening, not a summary judgement. The very limited procedure allowed
during an anti-SLAPP motion doesn't allow either side to put their
"best foot forward". The judge is not to do a deep dive into the
credibility of the affiants or merits. The question is just whether
"whether, on the entirety of the material, there are reasonable
grounds to believe that a reasonable trier could accept the evidence."

With respect to the "no valid defence" question, the plaintiff only
needs to address the defences advanced by the defendant in their
pleadings or in their anti-SLAPP motion. The judge needs to be
convinced that a trier of fact could conclude that none of the
defences would succeed. If that is conclusion is reasonably available,
the plaintiff has met the onus.

◊sub-heading{2b. The harm-balancing hurdle}

Even if the plaintiff meets the merits-based hurdle above, they also
need to show that:

◊codeblock{
the harm likely to have been or to be suffered by the respondent as a
result of the applicant's expression is serious enough that the public
interest in continuing the proceeding outweighs the public interest in
protecting that expression.

}

This means that some claims will be terminated here, even though they
could succeed on their merits at trial.

I think this is where most cases will be decided. Given the low
evidentiary standard for the other steps, I can imagine most parties
meeting their burdens there, forcing the judge to grapple with this
balancing decision.

◊q{The plaintiff must satisfy the motion judge that the harm caused to
it by the defendant's expression is "sufficiently serious" that the
public interest engaged in allowing the plaintiff to proceed with the
claim outweighs the public interest in protecting the defendant’s
freedom of expression.}

The harm can be in the form of monetary damages, but non-monetary harm
also counts: reputation, privacy, and harm to inherent liberty and
security interests.

On an anti-SLAPP motion, the judge needs only enough material to be
able to work out an estimate of quantitative damages. This doesn't
need to be fully developed evidence. The judge is to make a common
sense reading and only needs to see that the challenged expression is
causally connected to harm that is more than nominal. The plaintiff
can't just rely on bald assertions.

That harm needs to be weighed against the public interest in
protecting the expression at issue.

The term "public interest" in this clause here takes on a different
meaning than in a "matter of public interest" in the threshold stage
(which referred to the content of the expression). Here, the term
"public interest" means something more like "public benefit". At this
stage, it is recognized that some forms of speech are less deserving
of a shield against full litigation: "deliberate falsehoods,
gratuitous personal attacks, vulgar or offensive language" might
attract less protection from litigation than "the same message without
the lies, vitriol, and obscenities." The court also considers evidence
of actual libel chill in this part of the balancing: if allowing the
litigation to proceed would discourage other similarly-situated
speakers, that might weigh in favour of dismissing the case.

If the public interest in allowing the litigation to proceed (taking
into account the harm to the plaintiff) outweighs the public interest
in protecting the expression at issue, then, as long as the plaintiff
has also met the merits-based hurdle, the anti-SLAPP motion will be
dismissed and the litigation can continue.

This is all a qualitative balance. The judge needs to give full
reasons for their evaluations in this step and appeals courts must
defer to those balancing decisions.

◊heading{Charter challenges}

The Ontario Court of Appeal also dismissed two ◊em{Charter} challenges
to the Ontario Act in ◊a[#:href
"http://www.ontariocourts.ca/decisions/2018/2018ONCA0687.pdf"]{◊em{Platnick
v Bent}}.◊note{◊format-work[#:type "legal-case" #:title "Platnick v
Bent" #:citation "2018 ONCA 687" #:url
"http://www.ontariocourts.ca/decisions/2018/2018ONCA0687.pdf"]}

Platnick argued that the Act is an unconstitutional infringement on
one's liberty because it limits, in a manner inconsistent with
principles of fundamental justice, one's ability to defend one's
reputation. The Ontario Court of Appeal rejected that
claim. Reputation is not encompassed in the right to "liberty" or
"security of the person".

They also dismissed a ◊a[#:href
"https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art15.html"]{Section
15 (equality rights)} claim. Platnick argued that he was part of a
group that was analagous to the grounds listed explicitly in Section
15 (race, national or ethnic origin, colour, religion, sex, age or
mental or physical disability). That analagous group: "those
protecting constitutional principles and values of superordinate
importance." This claim was rejected because to accept such a broad
description of an analagous group would be provide a path to challenge
almost any legislative distinction. Second, the claim ignores Supreme
Court precedent that requires analagous grounds to reference
"immutable personal characteristics or personal characteristics which
are changeable only at unacceptable cost to personal identity."

◊heading{Back in BC}

You can follow the progress of this and every other bill ◊a[#:href
"https://www.leg.bc.ca/parliamentary-business/legislation-debates-proceedings/41st-parliament/4th-session/bills/progress-of-bills"]{here}.

It's hard to predict whether BC courts will follow the same
interpretive path as the Ontario courts. The Ontario Court of Appeal
relied heavily on the statements of purpose in the Act itself and on
the legislative history including the panel report and legislative
debate.

The BC Act doesn't have purpose statements and the legislative history
is understandably less developed because BC had the benefit of
Ontario's Act and the Uniform Act as a starting point. I don't know if
BC courts will look to legislative history from another province in
order to interpret the words of a BC act. Given how identical the
wording is and given that BC explicitly said it relied on the Uniform
Act, I would be surprised if BC's courts give it a substantially
different interpretation, but it might be worth it for the government
to more explicitly state the motivations and tradeoffs underlying this
act as it moves through readings and committees.