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19 Rev. Eur. Comp. & Int'l Envtl. L. 1 (2010)

handle is hein.journals/reel19 and id is 1 raw text is: RECIEL 19 (1) 2010. ISSN 0962 8797 Editorial An often-undocumented trend in various jurisdictions is the increasing number of legal proceedings which aim or have the effect of silencing public opposition to development projects. These attacks on the demo- cratic principle of public participation are often unmeritorious defamation or conspiracy claims that act to deter otherwise legal behaviour, such as advocacy at public meetings, Internet postings, demonstrations, boycotts, or petition campaigns. Such suits have been dubbed 'strategic lawsuits against public participation' (SLAPPs). The principal effect of SLAPPs is to silence representa- tions being made in public on issues of public signifi- cance. A plaintiff in a SLAPP uses the legal arena to intimidate the defendant and exhaust its resources, forcing the defendant to abandon its advocacy (in exchange for the plaintiff dropping the suit). A SLAPP plaintiff can therefore succeed in achieving its desired outcome without being successful in court. It should be noted that the chilling effects of SLAPPs are significant as other public citizens will also likely be compelled to refrain from advocacy for fear of being sued. Indirect effects on regulatory enforcement and polluter behav- iour may also be significant. Due to the silencing char- acter of these suits, they are seldom tracked or reported. Several jurisdictions have enacted legislation that aim to address the SLAPP problem. Twenty-seven US States have anti-SLAPP laws in effect, as do jurisdic- tions in Australia and Canada. However, many others do not. For instance, although the problem exists in Europe, little political or judicial action has been taken to address it. This issue of RECIEL examines the SLAPP phenom- enon, analyzing its extent and the types of initiatives that have been taken in various jurisdictions to address it. Samantha Brown and Mark Goldowitz review anti- SLAPP developments in the USA and the existing leg- islation protection that has been enacted in various US States. They argue that despite entrenched US consti- tutional rights to freedom of expression and to petition guaranteed in the First Amendment to the US Consti- tution and despite the fact that a majority of the US States have passed anti-SLAPP laws, there is need for a Federal anti-SLAPP law to ensure uniform protection against SLAPPs across the country. They argue that such legislation would prevent forum-shopping by plaintiffs who search for jurisdictions with the least protection against SLAPPs to bring their cases. Brown and Goldowitz propose US Federal legislation and provide a model setting out how uniform, comprehen- sive protection against SLAPPs could be achieved. Pamela Shapiro examines the framing of the definition of what constitutes a SLAPP. Noting that some com- mentators argue that it is the motivation to intimidate or chill public speech that is the aspect of a SLAPP on which anti-SLAPP legislation must focus, she argues that defining SLAPPs by the initiator's alleged intent to intimidate can render anti-SLAPP legislation inef- fective. She explains why SLAPPs should be defined by the defendant's involvement in public participation, arguing that effective anti-SLAPP laws must create procedural protections which would be triggered when a threshold demonstration has been made that shows that the case involves protected public interest communications. Catherine Norman's article introduces the SLAPP phenomenon and the direct and indirect effects of SLAPPs on democratic decision-making, law enforce- ment and polluter activities in the USA. She finds that anti-SLAPP legislation in the USA has led to 'changes in the dynamic and complex interactions between private citizens, environmental regulators, and polluting enti- ties'. Norman stresses that although the direct impacts of SLAPPs are significant, the indirect environmental and enforcement outcomes should also be taken into account and she provides a thorough review of those types of outcomes. The issue then examines how SLAPPs have been addressed in jurisdictions outside the USA, with papers examining the situation in Australia, various Canadian provinces and in Europe. Greg Ogle examines SLAPPs in Australia. He finds that the number of SLAPPs in his country has been increas- ing over the last number of years and describes some of the more significant cases. He notes that these cases have prompted legislative reforms and analyses how one Australian jurisdiction - the Australian Capital Territory - enacted such reforms. He also analyses the links between anti-SLAPP initiatives and reviews the ongoing debate in Australia over the need for a national Human Rights Act. Michaelin Scott and Chris Tollefson review the efforts that have been taken in British Columbia, Canada, to address SLAPPs. Noting that British Columbia enacted @ 2010 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Maiden, MA 02148, USA. 1

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