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Bloggers’ Rights and anti-SLAPP

Posted in Web/Tech

By Lisa Y. Wang

One usually thinks of a librarian as a calm and lawsuit-free job. However, a librarian in Canada is facing a $3.5-million lawsuit over a personal blog post he wrote three years ago. Dale Askey, an associate librarian at McMaster University, is being sued by Edwin Mellen Press Ltd., an international academic publishing company, who filed two lawsuits last June.

Mellen Press alleges that Askey accused them of “accepting second class authors” and urging “university libraries not to buy (their) titles because they are of poor quality and poor scholarship.” While this lawsuit will be heard in Canadian court under Canadian law, bloggers have been threatened with lawsuits in the US for articles they’ve written and opinions they’ve expressed. This brings up a whole slew of First Amendment issues and the SLAPP statute. 

If this lawsuit were filed in the United States, it might be considered a “SLAPP” (Strategic Lawsuit Against Public Participation) lawsuit. SLAPP refers to a lawsuit or legal threat intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition. Typically SLAPP lawsuits target ordinary citizens who cannot afford to pay the hefty legal fees it takes to defend such a lawsuit. They are a method used to intimate others from participating in debate and free speech and can be a strong method of silencing critics. SLAPP lawsuits often come in the form of a lawsuit claiming defamation or libel. The defining characteristic of a SLAPP lawsuit is that the plaintiff usually loses the case. However, a typical SLAPP lawsuit does not get to the trial phase as it is method used to chill the speech of citizens.

Whenever a lawsuit involves free speech, one of the first things the lawyer does is see if it falls under the anti-SLAPP statutes that seek to protect first amendment rights. Indeed, to prevail on an anti-SLAPP motion, the defendant must first show that the lawsuit is based on claims related to constitutionally protected activities, such as the First Amendment right to free speech. 

There are specific anti-SLAPP statutes that give certain rights to defendants who may find themselves on the wrong end of a SLAPP lawsuit. Over 28 states (and the District of Columbia and Guam) have enacted statutes that protect its citizens from SLAPP lawsuits. There is no federal anti-SLAPP law. 

California tends to have the most amount of SLAPP lawsuits compared to the rest of the country. California’s Anti-SLAPP statute provides and relatively quick and inexpensive defense for defendants and special legal procedures in hopes of discouraging SLAPP lawsuits. For example, after being served with the complaint, a defendant can almost immediately move to strike the complaint if the complaint is based on certain conduct that arises free speech such as speech in a public forum about an issue of public interest, speech conduct about an issue of public interest, or actions that arise from commercial speech or conduct. With so many bloggers and blog readers, it could be argued that almost all bloggers would be covered under the anti-SLAPP statutes, particularly the unlucky librarian. More importantly, the filing of an anti-SLAPP motion stays all discovery, typically the most expensive aspect of litigation. As a result, the cost of litigation for the anti-SLAPP defendant is greatly reduced and prevents the plaintiff from receiving information that may be critical to their claims. Defendants who succeed on an anti-SLAPP motion are entitled to a mandatory award of reasonable attorney’s fees, which lawmakers hope will further chill SLAPP lawsuits. Successful SLAPP defendants can even recover damages from SLAPP plaintiffs and their attorneys through a SLAPPback action (essentially a malicious prosecution action) and recover damages. 

As the amount of blogs and bloggers increase daily, these anti-SLAPP statutes become more and more important, and are a way to protect the First Amendment and free speech rights. Hopefully Dale Askey will be able to take advantage of Canada’s equivalent of the anti-SLAPP statute.