Slapping the SLAPPers

Ultimately, most SLAPPs are not legally successful. Nevertheless, while most SLAPPs do not succeed in court, they “succeed” in the public arena. This is because defending a SLAPP, even when the legal defense is strong, requires a substantial investment of money, time and resources. The resulting effect “chills” public participation in and open debate on important public issues.—The California Anti-SLAPP Project

THE other day Bayan Muna Party-list Rep. Teodoro Casiño vowed to file a bill aimed at banning “strategic lawsuits against public participation,” or SLAPP suits, saying such legislation is necessary to protect environmentalists, activists and journalists from frivolous legal actions aimed at stopping people from airing their concerns over legitimate issues related to public interest.

We share Casiño’s concern about SLAPP suits as they are often intended to prevent people, especially ordinary citizens, from expressing their rights under the Constitution.

Indeed, SLAPP suits have become a weapon by the powerful to silence the powerless, and it’s even practiced with reckless abandon in supposedly highly democratic societies like the United States.

According to the California Anti-SLAPP project, a SLAPP suit could take the form of a civil complaint filed against individuals or organizations arising from their communications to government or speeches on issues affecting the public interest.

The group said that SLAPP suits are often brought by corporations, real-estate developers, government officials and others against individuals and community groups who oppose them on issues of public concern. These suits usually take the form of civil claims like defamation, conspiracy, malicious prosecution, nuisance and interference with contract as a means of transforming public debate into lawsuits.

Indeed, the Philippines may need some kind of anti-SLAPP legislation to strengthen democracy here. More so because increasingly, more people are expressing themselves on public issues through web logs, online-discussion forums, letters to the editors and mass demonstrations.

But offhand we think it’s not practical to totally outlaw SLAPP suits. We believe that the judgment, whether or not a legal action is a SLAPP, rests on the courts and not someone else.

Besides, activists, environmentalists and journalists are not angels. Sometimes they do commit serious mistakes for which aggrieved parties should have the right to seek legal redress. Activists should always understand that getting legal suits is part of the hazards in the business of saving this world.

Maybe the Philippines could take a few pages from California’s anti-SLAPP statutes. California’s Code of Civil Procedure Section 425.16 allows the judge to decide from the very start whether or not a purported SLAPP suit has the probability of succeeding. Should the judge decide that the suit doesn’t have a chance of winning, she or he may dismiss the SLAPP suit and award the victim (the target of the lawsuit) lawyer’s fees and all other legal defense costs.

Most of the recent local environmental laws contain anti-SLAPP provisions. Section 53 of the Solid-Waste Management Law (Republic Act 9003) says: “Where a suit is brought against a person who filed an action as provided in Sec. 52 of this Act, or against any person, institution or government agency that implements this Act, it shall be the duty of the investigating prosecutor or the Court. . . to immediately make a determination not exceeding 30 days whether said legal action has been filed to harass, vex, exert undue pressure or stifle such legal recourses. . . . Upon determination thereof. . . the Court shall dismiss the case and award attorney’s fees and double damages.”

This indicates that the local statute actually has a strong built-in mechanism for deterring lawsuits simply meant to discourage whistle blowers in environmental controversies.

Now the question is, as usual, whether or not this safeguard within our local law can be used actually to protect the sincere and competent environmental activist as against the “A-C, D-C” types or the “shoot-from-the-hip” types who grandstand without any iota of documentary evidence. The other key question is how this safeguard could protect whistle blowers in other matters when it covers only issues pertaining to the solid-waste management law.

Instead of outlawing SLAPP suits right away, maybe Congress should work for a broader anti-SLAPP legislation covering public participation in all issues related to public interest. This kind of legislation would provide disincentives for the powerful to slap frivolous and whimsical suits against the small guys who are exercising their rights. (Originally drafted as editorial for BusinessMirror, August 23 2007).