Alberta does not have an anti-SLAPP law, i.e., legislation to protect those who speak out in the public interest from the costs of protracted litigation initiated by powerful interests. I can think of two Alberta examples of why anti-SLAPP is needed that I would like to disclose in an upcoming research paper. My problem is that if I name the plaintiffs in those strategic lawsuits, I will certainly be sued.
I had a vague sense that I would be afforded legal representation and indemnity by my university if I was sued in these circumstances. But when I made some inquiries about protections afforded to academic research – both inside and outside my particular university – I found this assumption to rest on shaky ground.
In my limited correspondence with others on this issue, I was told of the following cases (among others) at Canadian universities:
- A university law professor who posted a blog critical of a lawyer’s court room work was accused by that lawyer of violating the law society’s code of professional conduct and had to respond. The university took the view that professional membership was not connected to his academic duties and thus offered only limited and qualified coverage.
- Two professors were served with a subpoena to disclose confidential records. Rather than defend the action, the university told them to hand over the documents. The university finally stepped in to defend them but only after two years of wrangling and public embarrassment.
- A professor, listed as an expert on the university website, was interviewed and quoted in a news article. The comments were accurate and fair. The professor nonetheless was sued by a politician who was the subject of his comments. The university initially refused to provide legal representation but eventually relented after external pressure.
These cases are not about rogue professors, irresponsible behaviour or activities outside of the course of employment duties. These are all cases of professors doing the job they are obligated and encouraged to do, i.e. to engage in and enrich discourse in its various facets on matters of public interest.
In fact, it is worse than that. The role of academic freedom in society is to question and critique without fear of consequences. But for all the lofty talk and platitudes about academic freedom that permeate the university environment, I can find no university policies or provisions in collective agreements that offer any safeguards to academics who are sued.
University administrators are left with maximum flexibility on whether to provide legal representation or indemnity when a faculty member is sued. The university gets the benefit of a heightened profile through academic commentary/research disseminated in the community but without the obligation to help out when things go south.
The only effective way to address this problem is via collective agreement between academic staff and the university. I propose that academic unions negotiate the inclusion of specific language into their collective agreements under the Academic Freedom title. Here’s a shot at what that language might look like:
The university will pay the costs of legal representation of, and indemnify for any losses incurred by, members in any legal or administrative action or proceeding directed at research data, or the dissemination of ideas, opinions, or commentary, in one’s area of competence or expertise, in the course of or related to employment as an academic.
Please share any thoughts, experiences and suggestions you may have in the comments section or, if you prefer, by email.