Over the last few years, more and more corporations have used litigation as a tool to attack the credibility of human rights and environmental defenders. This phenomenon is part of what has been labelled, Strategic Litigation against Public Participation; more commonly referred to as SLAPP. SLAPP is increasingly used by corporations against individuals, or civil society organisations, which have criticised or made public allegations against the corporation’s actions, notably regarding allegations of environmental degradation or human rights abuses. It is not an entirely new strategy as the concept of SLAPP was conceptualised in the United-States during the 1970s, but we have recently experienced an exponential increase of SLAPPs used as a retaliatory mechanism against human rights and environmental defenders. The Business and Human Rights Resources, which is one of the leading international civil society organisations working on issues of corporate responsibilities for human rights violations, recently published a briefing on corporate legal accountability highlighting the amplitude of the phenomenon.
In this context, litigation is used as a way to force the critics to feel intimidated, and as a way to disrupt their credibility and their capacity to campaign against the corporation. Such legal action can take many forms, but it is often based on a civil lawsuit for defamation used instrumentally to undermine the reputation and credential of the human rights defenders. The use of litigation is seen as particularly strategic since courts processes are usually quite long and costly, giving corporations ‘breathing space’ to counteract the diffusion of public information about their actions. The cost of fighting the legal action put extreme financial pressure on the human rights or environmental defenders by forcing them to use what are already limited fund to address the litigation. The use of litigation becomes strategic as despite losing or winning in court, it diffuses the attention from environmental or human rights issues to civil lawsuits about defamation. As noted by Annalisa Ciampi, the United Nations Special Rapporteur on the rights to freedom of peaceful assembly and of association: “In the process, they distract and deflect discussions on corporate social responsibility, and – by masquerading as ordinary civil lawsuits – convert matters of public interest into technical private law disputes.”
Corporations have also used litigation as a way to counteract and challenge legal processes engaged against them. The saga of cases of litigation initiated by Chevron following serious pollution in the Amazonian region of Ecuador is an infamous illustration of such legal tactic. The serious pollution created by oil spillage has led to a series of multiple country-based legal strategies by Chevron to avoid responsibility, including lawsuits in Canada and the US. After losing a case in Ecuador where Chevron was ordered to pay $9 billion to affected communities, the company sued the affected Ecuadorians and their lawyers back in the United States under the federal anti-racketeering law (known as RICO). This is just an illustration, as such ‘attack to defend’ tactic in using litigation to counteract allegation of human rights or environmental violations is becoming increasingly common.
The most common legal tactic is to sue the individuals, or organisations, reporting on environmental or human rights abuses for defamation, trying to tarnish their reputation or the validity of their findings. An ongoing illustration of such defamation tactic comes from the multiple lawsuits against migrant’s rights activist Andy Hall by the Natural Fruit Company (“NatFruit”) in Thailand. The first litigation was launched in February 2013 following the released of a report entitled “Cheap has a High Price,” which highlighted labour rights violations such as the use of underage labour, migrant worker passport confiscation, and unpaid overtime by Natfruit. Following the publication of the report, Natfruit filed suit against Hall for defamation and violation of the Thai Act on Computer Crime for allegedly making false statements to public media. In 2016 Hall was found guilty of criminal defamation and violation of Thailand’s Computer Crimes Act and sentenced to three years and suspended for two years because of his record as a human rights defender. In March 2018, another court issued a verdict on the civil damages claim ordering Andy Hall to pay 10 million baht (US$320,000) in damages to the company. This legal tactic was used to make sure that no more allegations could be made against the company, despite the fact that no courts actually looked at situation faced by the concerned migrant workers. In their decision, the judges gave weight to Natural Fruit’s evidence that government inspectors had regularly visited the factory and found no serious issues, despite the availability made by Andy Hall of research notes, photos and several witnesses of the labour rights violations.
Another approach is to attack the reputation of the environmental or human rights defenders. The ongoing litigation launched by the Canadian logging company Resolute Forest Products against Greenpeace and other environmental groups is a good illustration of such tactic. In this case, the company challenges the allegations made by the environmental groups for being defamatory and tortious. The company took legal action using the US Racketeer Influenced and Corrupt Organizations Act (“RICO”) claiming that the environmental groups have made defamatory claims to fraudulently induce donations from the public in violation of the RICO act. The case is ongoing but provides an illustration of the ways to use litigation to reverse the allegations and tarnish the civil society organisations’ reputation. As noted by Katie Redford: “At the very least, Greenpeace is going to have to spend resources and time defending themselves instead of the environment. That is a victory for Resolute, whatever the outcome of the lawsuit. And it is a loss for the planet and every one of us who now has to deal with such harassment.” A similar tactic has been used against protestors against the Dakota Access Pipeline. In August 2017, Energy Transfer Partners (ETP), the company responsible for the Dakota Access Pipeline, sued multiple Greenpeace entities and various other organizations involved in the protests against the pipeline. This is a way to use a court to legally diffuse the pressure felt by the corporation.
Not only human rights and environmental defenders are targeted by these cases of litigation, as journalists have also been facing SLAPP actions. A recent example includes the Bolloré Group against several media outlets following reporting on cases of land grabbing and violence committed against local communities in Cameron in the context of palm oil exploitation. As illustrated by a current case of defamation in South Africa, SLAPP can go as far as challenging statement made during university’ courses. Following presentation made during a summer course at the University of Cape about the legality and environmental impacts of a local mineral sands mine, MRC subsidiary Mineral Sands Resources, a subsidiary of Australian mining company Mineral Commodities Limited took a case defamation against the Centre for Environmental Rights.
This increase and more systematic recourse to litigation as a strategy to stop the flow of information about the impact of the acts of corporations is particularly worrisome as it challenges open debates and diffusion of public information regarding serious environmental or human rights issues. SLAPP not only undermine the rights to freedom of expression, of assembly, and of association but also challenge the very bases of democracy by reversing the primacy of matters of public interest over personal issues. It results in the exploitation of the judicial procedure as an intimidation and censorship weapon, in most cases used against civil society.
One of the issues is the lack of legal framework or institution to challenge the overuse of litigation as a strategy to silence environmental and human rights defenders. As analysed in a recent report concerning SLAPP cases in France, there is lack of international legal standards to address these particular forms of legal attacks against human rights defenders. In terms of international human rights law, some of the United Nations monitoring bodies have started to address the issue. For example, the UN Committee on Economic, Social and Cultural Rights has elaborated a set of States’ obligation to protect individuals under their jurisdiction from interference by third parties in the context of business activities. In this general comment, the Committee specifically noted: “The introduction by corporations of actions to discourage individuals or groups from exercising remedies, for instance by alleging damage to a corporation’s reputation, should not be abused to create a chilling effect on the legitimate exercise of such remedies.” The increased attacks on human rights defenders who speak up against business-related impacts on people and the environment were also one of the key issues examined at the last meeting of the UN Forum on Business and Human Rights. Whilst international human rights bodies have started to highlight the issue, there is a lack of systematic international reaction. Most individuals and organisations facing these legal challenges are usually left to their own devices with little means to support the tremendous legal, technical and financial challenges created by the multiple and systematic use of litigation against them.
This increased use of SLAPP as a legal tactic to undermine access to public information needs to be placed in the larger context of attacks and restrictions put on the work of civil society actors reporting in these issues. There is an increased tendency to criminalise and put restrictions on the work of environmental and human rights defenders. This includes criminalisation of dissent, as well as fake charges of terrorism. The recent charges of terrorism launched against the UN Special Rapporteur on the Rights of Indigenous Peoples is an illustration of a much wider phenomenon of labelling environmental and human rights defenders as terrorist or dissident. In this context, corporations are not directly responsible as it is government pressing the charges, but indirectly the use of terms such as “ecoterrorists” by corporations greatly influence public authorities. This overall aggressive climate has led to serious increased of murders and killings of human rights and environmental defenders across the globe. As concluded by the Special Rapporteur on the situation of human rights defenders: “the consolidation of more sophisticated forms of silencing their voices and impeding their work, including the application of legal and administrative provisions or the misuse of the judicial system to criminalize and stigmatise their activities. These patterns not only endanger the physical integrity and undermine the work of human rights defenders, but also impose a climate of fear and send an intimidating message to society at large.”
Dear Jeremie, thank you for such an excellent and inspiring article.
The instrumental use of legal proceedings to silence activists, investigative journalists, whistleblowers, and other members of the civil society is an extremely burning issue that is causing grave concerns.
As you have mentioned, it is not a new tactic. It has been used since the 1970s in the United States, e.g, the list of Nixon’s enemies that included politicians, journalists, and even Hollywood actors, who were harassed with pretentious legal actions (https://www.youtube.com/watch?v=IHnmriyXYeg&list=LLkZftvFhkzcIyJxBUti3IOw&index=54).
However, such an instrumental use of legal actions is currently becoming a particularly thorny issue because of the increasingly extensive use that irresponsible corporations are making of it. Thanks to the immense amount of wealth that corporations have at their disposal, they can use such unethical tactics even when they do not have any realistic chances of winning the legal cases.
What is really scaring is that this irresponsible behavior is spreading and is also used to try to silence opponents that try to unveil corrupt corporate activities and the shady deals arranged by firms and politicians.
A glaring example is represented by what happened to Daphne Anne Caruana Galizia, who before being murdered was also subject to what has been defined as “a concerted attempt to ruin her financially” through pretentious judicial actions by groups, businessmen, politicians, often with the assistance of foreign lawyers. By the time of her death, she was defending 47 individual defamation suits… (https://www.theguardian.com/world/2018/apr/17/daphne-caruana-galizia-malta-has-made-me-a-scapegoat).
Very insightful post Jeremie. One that breaks the heart and motivates to action at the same time! The approach taken by corporations, which is to attack the reputation of the environmental or human rights defenders has been around a long time and is usually a way to silence communities, their leading voices and those who care enough to stand up against the injustices being meted out to them. This is also usually in conjunction with the State apparatus.
A case in point is the story of Ken Saro Wiwa story from Ogoni, Nigeria. Read Roy Doron and Toyin Falola’s book – Ken Saro-Wiwa, where they said: “Shell played the game that they felt they had to play in a Nigeria run by a corrupt and brutal dictatorship. But their role went deeper than that. They actively solicited “protection” from the Nigerian military knowing exactly the kind of brutality it would entail. Shell also actively colluded with the Nigerian government in Saro-Wiwa’s prosecution, and when their role became apparent, claimed that it was the state’s role to ensure fairness under the law, and not a corporation’s. This is a claim that many of Shell’s apologists continue to make and the hypocrisy of these ideas…”. See excerpts at: https://www.washingtonpost.com/news/monkey-cage/wp/2016/07/29/the-complex-life-death-of-ken-saro-wiwa/?noredirect=on&utm_term=.83781c6706ec.
Thanks for highlighting something so important, yet ofttimes under-discussed in International discourse.
Violet Ulaeto 28th september 2020 at 10:12pm
I totally agree with you Lola. Another case study where a human right activist has been silenced is the case of Omoyele Sowore and Olawale Bakare under the Buhari’s administration solely for exercising their right to freedom of expression. Omoyele Sowore, Olawale Bakare were arrested by officials of the Nigerian intelligence service after they called for a nationwide protest denouncing the socio-economic conditions in the country.
They faced several charges including treason, money laundering, and cyber-staking. If convicted, they could face up to life imprisonment or the death penalty. Even after meeting harsh bail conditions, on the 9th November a warrant for their release was issued by a Federal High judge in Abuja, it took the Nigerian authorities weeks to finally release him.
According to seun Bakare he said the flawed charges and sham trials of Sowore, Bakare exposed the inadequacies and bizzare manipulation of the Nigeria criminal justice system and an unacceptable contempt for the rule of law and human rights.
https://www.amnesty.org/en/latest/news/2019/11/nigeria-sowore-bakare-and-jalingo-declared-prisoners-of-conscience/
Hello Jeremie,
You provide some great insights in your article. I am from the Philippines and SLAPP suits are definitely a prevailing issue. Your article mentions SLAPP suits filed by powerful corporations against Human Rights and Environmental Defenders. I would like to know your thoughts on libel suits filed by a State’s Department of Justice.
Specifically, I would like to tell you about a very fresh development in my country. Just yesterday, the National Bureau of Investigation arrested Maria Ressa, the CEO and Executive Director of one of the prominent online news companies in the Philippines – Rappler, on grounds of Cyber Libel, which is criminal in the Philippines. Rappler is known for being very vocal against alleged government abuses and has taken a stance to inform the public of any alleged abuses under the current Duterte Administration of the Philippines. The public sentiment is that such action by the current administration is clearly a crackdown against anti-government news agencies. But Rappler has always stated that it merely tells the news as it is – the truth.
This development has been picked up by all the big new agencies around the world. I cannot imagine the impact this act will do to other news agencies in my country. You can find the news in the following links:
https://www.nytimes.com/2019/02/13/world/asia/maria-ressa-arrested.html
https://www.rappler.com/nation/223411-maria-ressa-arrested-for-cyber-libel-february-2019
https://www.bbc.co.uk/news/world-asia-47225217
From your discussion, we can see many parallels as Human Rights Advocates (such as Maria Ressa) have been subjected to various libel suits. I actually find that her situation is much more challenging as the other party is the State itself, which is suppose to defend and protect the rights of its citizens. States, just like the biggest corporations of the world, are powerful so how can one individual go against the government?
It looks like the current administration has taken a page from the SLAPP suits of corporations and incorporated it against individuals who speak up against the alleged abuses of the government.
Kind regards,
Sherdil
Dear Sherdil, yes indeed I have read about Maria Ressa, and the more general situation in the country. Indeed using this sort of litigation/repression of freedom advocates is not the panacea of corporations, but States are also used to such methods of silencing any opposition…and this seems to be also be an increase strategy use by government across the globe.
I want to say thank you to Professor Gilbert for uncovering the truths of corporations, which are basically acting like a profit-making machine.
People are refusing to see corporations as real criminals because of social and legal constructions. Thus, corporations are using this unawareness as an advantage for their unlawful actions. It can be suggested that the SLAPP tactic is a reflection of the corporate retaliatory mechanism against human rights and environmental defenders. In addition, as you pointed out, these stated defenders are seen as a target for all businesses, which are abusing their power.
Secondly, legal entities cannot commit a crime in most countries and consequently, only the representative of the business will be liable for the offense. As an example, in the UK under the ‘identification doctrine,’ only the natural persons can be liable if they demonstrate directing mind or will of the company. However, it is always impossible to show evidence if the CEO knows the offense. Thus, it can be observed that it is not a well-functioning system. In addition, it can be argued that the regime of corporate criminal liability lies behind the SLAPP suits. I believe that because we are struggling worldwide to make corporations effectively liable for criminal offenses. Until an effective regime of corporate criminal liability is introduced, corporations may be still able to violate human rights with impunity. I think, if we take into account our current legal system, this can be given as a reason for why SLAPP has been becoming increasingly popular.
In order to protect the people who fight for the protection of human rights from corporate misbehaviour, we should intervene and amend our legal systems enhancing it following the values of justice and equality. I believe that, if we can prepare more effective laws for criminal liability, we will be able to prevent some potential SLAPP tactics and suchlike unlawful actions. For instance, corporate mens rea can be standardised by regulations. To my mind, this could be an option to tackle corporate violations of human right as well as SLAPP techniques.
Hi Jeremie,
Thanks a lot for a wonderful piece giving a critical analysis to the SLAPP technique.
It is rather unfortunate that we are faced with a situation like this more so because there’s no help coming from anyone. The government who happen to have the power to curtail the frivolous activities of these big corporations have been left handicapped as they ( cooperation) turn to generate more income for the economy, provide employment for a huge number of the population and even fund political campaigns. How then can a government which is clearly benefiting from the advantages of these big cooperations protect its citizens against them. I urge that we do not sit back and wait for Calvary because it’s not coming. It’s in our place to speak up for what we believe in. These cooperations May be giants and we ants, but we cannot Ignore the influence of the media in our recent times. The more attention is brought to the unethical behaviors of these large cooperations, they realize that they can no longer feed off ignorance of the masses and to the very least,uphold their duty of care.
If we take as an example the McDonald’s cooperation v. Steel & Morris (1997) popularly known as McLibel case in the UK that lasted over 2 and a half years. The ruling was in favor of McDonald’s but McDonald’s decision to sue two activists in the 1990s meant that all its business practices were laid bare in court, which changed the company for ever. UK’s Channel 4 news as “the most expensive and disastrous public relations exercise ever mounted by a multinational company”. (http://news.bbc.co.uk/1/hi/uk/4266741.stm)
These are exactly the kinds of actions we need for exposure to these unethical behaviors of big cooperations.
Bad press affects these giant directly; there is decrease in stock prices, exploitation of the situation by rivalry companies and sometimes may lead to the complete product boycott.
A comeback by these cooperations will entail a change and an improvement.
And personally I think that is a win.
John-Grace Kameni
Hi Jeremie,
This article illustrates the true nature of the immense increase of corporations using strategic lawsuits to silence human rights activists. Many challengers / activists to these big corporations are not wealthy or robust enough to outlast the lengthy and expensive legal process to be heard. And even if they are, by the time the verdict is given, the actual focus of the fight would have shifted from the environment to the corporation thus making the corporation more famous.
There is plenty of research that shows the use of home legal system advantage can spell the difference between victory and defeat in litigation.
In the movie “The Godfather” the main character ‘Don Corleone’ stated, “The lawyer with his briefcase can steal more than a hundred men with guns.”
Law is perhaps the most hidden of all competitive strategy tools. Many in business fear getting tangled up with lawyers, lobbyists, and bureaucrats, so they keep their distance from legal matters. But it is just this aversion that makes legal knowledge such a rich source of competitive advantage for those who take the time to understand how legal systems really work.
The revamp of laws for corporate responsibility and accountability is compellingly required.
Tom Nettey