Sharp words don’t warrant a harsh SLAPP

The Telegraph Journal
April 10, 1997

It was the Atlantic Institute for Market Studies that got SLAPP-ed, but every New Brunswicker should feel the sting of that assault.

NB Power’s use of its considerable corporate weight in an attempt to silence one of its most vocal critics was more than inappropriate; it was downright frightening. The chill that NB Power directed at AIMS should run down the back of every New Brunswicker, including Premier Frank McKenna.

The publicly-owned utility and its officials demonstrated an alarming thinness of hide this week when they launched a lawsuit against the Halifax-based public policy think-tank. They alleged that a critique of NB Power’s performance before a legislature committee last year, written by Tom Adams of the Ontario-based utility watchdog Energy Probe, was ”maliciously calculated” to damage the public reputation of the utility and its president, James Hankinson.

AIMS beat a hasty strategic retreat, standing by the substance of the article but withdrawing any apparent references to Mr. Hankinson’s personal capabilities. Energy Probe, which was also named in the lawsuit, spit in NB Power’s corporate eye and invited the utility to take them to court. That lawsuit is still on the books.

It would have been courageous for AIMS to do the same, and make NB Power respond to the criticisms in the forum of open court. But considering the tactics NB Power had used, it’s easy to see why they chose to fight and run away.

NB Power did not take its corporate wrath just on AIMS management or on Mr. Adams as the author of the offending article – they served legal papers on every member of the AIMS board of directors, a group that includes a galaxy of corporate and political luminaries. Former federal cabinet minister John Crosbie was among those who received legal notice; so was ex-provincial cabinet minister Denis Losier. More significantly, the list of sued directors included the presidents of NB Power’s competition in Nova Scotia and Prince Edward Island.

This publicly-owned utility was not seeking legal redress or the righting of some profound wrong. It’s purpose here was to frighten and intimidate an agency critical of its policies by applying pressure at its most vulnerable point. Had AIMS chosen to stand and fight, NB Power could have dragged the proceedings through the court system until the group ran out of money or will to continue the struggle.

The tactic has been given a name in legal circles – a SLAPP (Strategic Litigation Against Public Participation) suit. It is corporate power in its most naked form: sue your critics for defamation, then wear them down financially when they attempt to defend themselves.

It has been used most frequently by large multinational corporations against environmentalists, skirting free speech laws to silence public criticism. This is chilling enough when practised by the corporate power-mongers. To see it used by a corporation in the public domain, whose owners include those being targeted, is a frightening prospect.

For this reason, the McKenna government would be advised to take a hard look at a private members’ bill that was presented in the dying hours of this year’s legislature session.

The Public Participation Act, tabled by New Democratic Party leader Elizabeth Weir on the second-to-last day of the House sitting in February, would set strict rules against the use of legal harassment tactics by corporations. The act would guarantee any group or citizen the right to participate in any public debate and restrict the ability of corporations to file nuisance lawsuits against their critics.

Ms. Weir’s proposed bill would put the onus on corporations like NB Power to show they have suffered material damage from public criticism; a reasonable restriction that would prevent the wealthy from suing the impoverished over something as trivial as hurt feelings.

The bill died on the order paper, but the NDP leader has promised to re-introduce it when the House session resumes this fall. The McKenna Liberals should welcome that, or even draft legislation of their own to prevent these bullying tactics from being used on others.

And they should tell the Powers That Be at NB Power to learn how to cope with criticism. If they were slapped around a bit by the politicians, they might develop a thicker hide.

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