[47]
SLAPPs first emerged in the United States as a tendency of some powerful
businesses to use the threat of litigation to frustrate public mobilization efforts against
them (R. A. Macdonald, P. Noreau and D. Jutras, Les poursuites stratégiques contre la
mobilisation publique — les poursuites-bâillons (SLAPP) (2007), at p. 2). Because of
these origins, the archetypal SLAPP is generally described as a powerful or wealthy
plaintiff, who has suffered only nominal damage, using litigation against a
comparatively under-resourced defendant to silence criticism (see Platnick v. Bent,
2018 ONCA 687, 426 D.L.R. (4th) 60, at para. 99).
[48]
But SLAPPs do not always embody the hallmarks of the archetype. A
SLAPP may be initiated by the rich and powerful, but not always. Similarly, the
plaintiff may not have a history of using litigation or the threat of litigation to silence
critics. In any case, however, the consistent defining feature of a SLAPP is that the
proceeding acts to silence the defendant, and more broadly, to suppress debate on
matters of public interest, rather than to remedy serious harm suffered by the plaintiff.
2023 SCC 14 (CanLII)
The function of the tort of defamation is to vindicate reputation, but
many courts have concluded that the traditional elements of that tort may
require modification to provide broader accommodation to the value of
freedom of expression. There is concern that matters of public interest go
unreported because publishers fear the ballooning cost and disruption of
defending a defamation action. . . .When controversies erupt, statements of
claim often follow as night follows day, not only in serious claims (as here)
but in actions launched simply for the purpose of intimidation. Of course
“chilling” false and defamatory speech is not a bad thing in itself, but
chilling debate on matters of legitimate public interest raises issues of
inappropriate censorship and self-censorship. Public controversy can be a
rough trade, and the law needs to accommodate its requirements.
[Emphasis in original; para. 15.]
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