看到的翻译主要有,“SLAPP诉讼”、“反对公众参与的战略诉讼”、“针对公众参与的策略性诉讼”,并且UNESCO的中文网站上采用的是“针对公众参与的策略性诉讼”。
“SLAPP”的全称为“Strategic Lawsuit Against Public Participation”,具体释义为:“refers to lawsuits brought by individuals and entities to dissuade their critics from continuing to produce negative publicity. By definition, SLAPP suits do not have any true legal claims against the critics. People bring SLAPP suits because they can either temporarily prevent their critics from making public statements against them or more commonly to make critics spend all of their time and resources defending the SLAPP suits.”
从上面的释义可以看出,这类诉讼并非是真的针对批评者提起的诉讼,提起诉讼可能是为了阻止批评者继续公开发表不利于原告的言论,也可能是为了消耗批评者的时间和资源进行抗辩,总之,这类诉讼算是一种策略,即使败诉,也可以达到其目的,即警告被告即批评者不要继续公开发表不利于原告的言论。
所以,个人认为,从释义上来看,上面三种译法都可行,具体采用哪种译文看个人选择。
延伸:
在美国,为了保护言论自由权,有些州颁布了反对“SLAPP suit”的法律,允许被告基于案件涉及对公众关注的问题发表言论(该等言论受到保护)这一理由提交删除申请(motion to strike)或驳回原告起诉的申请(motion to dismiss),然后,原告须承担证明其胜诉几率的责任。若原告未能履行该责任,则其索赔要求将会被驳回,同时可能会因提起该等诉讼而遭受罚款。
比如,在加利福尼亚州,《民事诉讼法典》(Code of Civil Procedure)第425.16条就是反对“SLAPP suit”的条款,具体规定如下所示:
“(a) The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, this section shall be construed broadly.
(b) (1) A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.
(2) In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.
(3) If the court determines that the plaintiff has established a probability that the plaintiff will prevail on the claim, neither that determination nor the fact of that determination shall be admissible in evidence at any later stage of the case, or in any subsequent action, and no burden of proof or degree of proof otherwise applicable shall be affected by that determination in any later stage of the case or in any subsequent proceeding.
(c) (1) Except as provided in paragraph (2), in any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover that defendant’s attorney’s fees and costs. If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney’s fees to a plaintiff prevailing on the motion, pursuant to Section 128.5.
(2) A defendant who prevails on a special motion to strike in an action subject to paragraph (1) shall not be entitled to attorney’s fees and costs if that cause of action is brought pursuant to Section 11130, 11130.3, 54960, or 54960.1 of the Government Code, or pursuant to Chapter 2 (commencing with Section 7923.100) of Part 4 of Division 10 of Title 1 of the Government Code. Nothing in this paragraph shall be construed to prevent a prevailing defendant from recovering attorney’s fees and costs pursuant to Section 7923.115, 11130.5, or 54960.5 of the Government Code.”
