Delaware

The Delaware anti-SLAPP statute protects individuals from legal actions involving public petition and participation. However, such actions are narrowly defined as those brought by a public applicant or permittee in response to the defendant’s statements or other efforts “to report on, rule on, challenge or oppose” that application or permission. Del. Code Ann. tit. 10 8136 (2011). A public applicant or permittee is defined as “any person who has applied for or obtained a permit, zoning change, lease, license, certificate or other entitlement for use or permission to act from any government body, or any person with an interest, connection or affiliation with such person that is materially related to such application or permission.”

The statute allows a defendant faced with an action involving public petition and participation to move to dismiss the complaint. 8137. Delaware’s anti-SLAPP law is one of only a handful to not address the effect of a SLAPP defendant’s motion to dispose of the claim on discovery proceedings. The court will grant the motion unless the plaintiff can demonstrate that the claim has a substantial basis in fact and law or a substantial argument for a modification of existing law. The plaintiff must also establish by clear and convincing evidence that the communication was made with knowledge of or reckless disregard for its falsity if such truth or falsity is material to the underlying claim. 8136. The statute does not specify what evidence the court will consider in making this determination.

If the court grants the motion to dismiss, it may — but is not required to — award attorney fees, costs and actual damages. 8138. Moreover, it may award punitive damages to a defendant who can demonstrate that the action was brought “for the purpose of harassing, intimidating, punishing or otherwise maliciously inhibiting the free exercise of speech, petition or association rights.”