Freedom of Expression
At their core, SLAPPs violate the right to freedom of expression. These cases prevent the speaker from imparting information to the public, and they prevent the public from receiving information from the speaker. Further, a SLAPP may discourage others who do not face suit from attempting to impart information to the public.
Because political expression is necessary to the functioning of democracy, such expression receives the highest level of legal protection. International human rights law establishes strict criteria before restrictions on that expression can be imposed.
Right to Petition
Because the underlying facts in SLAPPs often involve important questions of public policy relating to environmental matters, these cases also implicate the right to petition the government on these issues. The right to petition provides immunity to SLAPP victims who are engaged in a legitimate effort to influence government policy or decision-making.
For example, in the United States, those challenging petitioning activity typically must show that the defendant's activity is a "sham." The question is whether the activity may result in a decision, either affirmative or negative, by the government. If so, the petitioning activity is not a sham.
Freedom of Association
Finally, SLAPPs infringe on the right to freedom of association because they often have the deliberate consequence of deterring groups of similarly affected or like-minded individuals from together speaking out in favor of a healthy environment for themselves or others.
Privileges and Defenses
There are a number of common defenses to defamation, as well as privileges that may bar liability even if all of the elements of a defamation case are proven. For example, in many jurisdictions, if the statement complained of is true, there is no liability, while in others, truth is not always a defense. Even if a statement is false, there may be no liability if the defendant made the statement in good faith (believed the statement to be true and made reasonable efforts to determine the truth). And if the statement made was merely an opinion (cannot be proven to be true or false), there may be no liability. Finally, in the United States and certain other jurisdictions, there may be no liability for false statements made about a public figure or on a matter of public interest if the statement was not made with knowledge or reckless disregard of its falsity.
National Anti- SLAPP laws
In response to the profound chilling effect that SLAPPs have on citizens exercising their rights, some countries, most notably the United States, have imposed restrictions on SLAPPs. At least twenty-four U.S. states have enacted legislation discouraging SLAPPs. Many of these statutes establish an expedited process for asking the court to dismiss SLAPP claims; suspend or sharply limit activity in the case until a ruling is made on the request for dismissal; and shift the attorney's fees and costs of the defendant to the plaintiff if the defendant prevails.
Non-governmental organizations in Australia have proposed legislation to limit SLAPPs. The SLAPP phenomenon has also raised alarms in South Africa and Canada. The Philippines will likely be considering proposed national anti-SLAPP legislation in 2008.
Strategies for Defending Against SLAPPs
There are a number of strategies that may be helpful in defending against these cases, as described in Ten Strategies for Defending against Criminal Charges.
Brazilian journalist Lucio Flavio Pinto, sued dozens of times for his reporting on environmental devastation and corruption in the Amazon.