LEGAL SLAPP DOWN

The Canadian supreme court has ruled against a developer for using the courtroom as a means of stifling democratic expression

Patricia Goliath, deputy judge president of the Western Cape, is a woman with much on her mind: an alleged plot against her life, said to have been planned by judge president John Hlophe; increasingly sour relations between herself and Hlophe; and a toxic atmosphere in their division of the high court. Not to mention her leadership duties at the court, and the judgments she is expected to deliver as usual.

One such case, argued in June, is part of a series of related matters in which a major international company is suing local environmental activists and an environmental lawyer for defamation. The company, Mineral Commodities, and its local officials are demanding huge amounts of money for the alleged defamation.

Such unequal battles have come to be known as “Slapp” (strategic litigation against public participation) cases. Typically, in such a case the public interest parties argue that the powerful party on the other side is litigating to silence criticism by the public and the media. It’s hardly surprising then that SA’S NGOS are keenly awaiting Goliath’s judgment on the issue.

But courts in other parts of the world are also seeing such litigation more often. Last week, Canada’s highest court handed down two decisions involving Slapp suits. Both come from Ontario, which passed an anti-slapp law five years ago, making this the supreme court’s first opportunity to engage with the new legislation.

The court split 5:4 on one case, involving lawyer Maia Bent. She was a member of an Ontario law firm and of the Ontario Trial Lawyers Association, a body of legal professionals who act for those injured in road accidents.

Bent was sued by Howard Platnick, a doctor often asked by insurance companies to review the assessment of other medical specialists and prepare a final report of the accident victim’s level of impairment.

Bent wrote some comments criticising Platnick by name as having “altered” doctors’ reports and having “changed” a decision by another doctor. When those comments became public, Platnick sued Bent, asking $16.3m for defamation.

Five judges found Platnick’s case against Bent should be allowed to run its course and was not affected by the Slapp laws. Four judges said Platnick’s action, “and the exorbitant amount of damages he is seeking”, was “precisely the kind of claim that has the effect of stifling expression on matters of public interest”.

In the second case, however, all nine judges decided in favour of an environmental activist group, the Pointes Protection Association. Pointes had criticised a proposed subdivision by a developer, saying it would result in ecological and environmental damage. The developer then claimed these comments breached an agreement between Pointes and itself in terms of which public statements by Pointes would be limited, and claimed $6m for breach of contract.

Parties supporting Pointes’s action included Greenpeace Canada, the Centre for Free Expression, media companies, a rape crisis centre and the Canadian Constitution Foundation, all of which see a major threat to free speech if big business is able to get away with bullying NGOS via Slapp suits.

The judges agreed with that analysis. “This case,” they began, “is about what happens when individuals and organisations use litigation as a tool to quell [democratic] expression, which, in turn, quells participation and engagement in matters of public interest.”

Public interest

For the Supreme Court of Canada, the Pointes case was not difficult, among other reasons because of the strong public interest in the ecological impact and environmental degradation associated with the large-scale development planned by the developer.

So, will Goliath take the same approach to the issue of litigation that “quells engagement in matters of public interest”? Time will tell, but whatever her decision, this seems a matter ultimately destined for the Constitutional Court.

Parties to the case see a major threat to free speech if big business is able to get away with bullying NGOS via Slapp suits