The critique of the Strategic Lawsuits Against Public Participation (SLAPP) bill presented by Gill Phillips raises concerns, although from a different angle than mine. While I agree that the bill is disappointing, my concerns stem from its inherent flaws and rushed implementation in response to a limited number of alleged cases. It seems unreasonable to set ablaze the entire orchard due to a few bad apples.
The impact of this legislation extends beyond just the “rich and powerful”; it has the potential to affect anyone. Any lawsuit, regardless of its merit, could be labeled a SLAPP if the claimant’s actions are deemed to cause more than ordinary inconvenience during what is considered properly conducted litigation. Unfortunately, there’s a lack of clarity on where this threshold lies.
Furthermore, if a claim is deemed a SLAPP, it could be dismissed unless the claimant can demonstrate a greater likelihood of success at trial, a challenging task especially early in the legal process before evidence is fully disclosed. This effectively shifts the burden of proof onto the claimant, a move that even the government recognizes could weaken media standards.
Even if a claimant prevails at trial, the court cannot award them legal costs unless they also prove the defendant’s misconduct justifies such compensation. This places an immense and unjustifiable burden on claimants, particularly considering that most defamation claimants are already left financially disadvantaged even when awarded costs.
Given human nature, when presented with a new tool, everything tends to resemble a nail. With little disincentive to file an anti-SLAPP application and a broad definition of SLAPP actions coupled with potentially substantial benefits, there’s a risk that defendants will routinely utilize this tactic. This would ultimately inflate litigation costs, contradicting the bill’s purported aim of reducing such expenses.