Model Training Materials: Hate Speech, Defamation and National Security strategy to combat abuse of defamation laws. Decriminalising defamation, for example, may be a more urgent priority where journalist and activists frequently face criminal defamation charges. Notwithstanding these considerations, anti-SLAPP measures may represent an important protective innovation against abusive defamation lawsuits in many countries. Anti-SLAPP Laws California (United States): California, where anti-SLAPP protections have been in place since 1992, has one of the more comprehensive anti-SLAPP laws. It includes the following features: • The defendant can make a special motion to strike a case when facing a lawsuit based on an exercise of the right to petition or freedom of expression in relation to a public issue. If the lawsuit is based on speech on a public issue, the court strikes the case unless the plaintiff can show a probability that he or she will prevail on the merits of the case.106 • The proceedings by which the parties gather evidence from each other, known as “discovery” in the United States, where they are often an expensive process, are stayed while the court considers the motion, unless the court specially orders discovery.107 • If the defendant is successful in the special motion, the court will require the plaintiff to cover attorney’s fees and costs (normally in the U.S. each party bears their own costs in such cases). Conversely, if the plaintiff shows that the defendant’s special motion to strike was frivolous or solely intended to cause delay, the plaintiff can recover fees and costs from the defendant.108 • Parties can immediately appeal the court’s decision on the motion to strike.109 • The law was subsequently amended to address concerns over its abuse. A public interest exemption now effectively prevents the procedure from being applied when non-profit plaintiffs bring public interest litigation. A commercial speech exemption limits the use of the anti-SLAPP law by corporate defendants facing class action lawsuits relating to false advertising.110 • Unlike some anti-SLAPP laws, there is no possibility for the court to award punitive damages. However, California does set out special procedural rules to facilitate a “SLAPP-back” countersuit, or a malicious prosecution suit brought by the target of SLAPP against the party who originally brought the SLAPP.111 California Code of Civil Procedure, section 425.16(b),(e), https://bit.ly/3Tf4a5E. Ibid., section 425.16(g). 108 Ibid., section 425.16(c). 109 Ibid., section 425.16(i). 110 Ibid., section 425.17; for a discussion of the exemptions (narrowed by the California Supreme Court) see Julio Sharp-Wasserman, “New York’s Anti-SLAPP Law is Only a Slap on the Wrist”, NYSBA Journal, 2019, https://bit.ly/3UcrRNo. 111 Ibid., section 425.18. 106 107 The Centre for Law and Democracy is a non-profit human rights organisation working internationally to provide legal expertise on foundational rights for democracy. 25