On the 14th of December 2020, Prof. Jérémie Gilbert (Professor of Human Rights Law at the University of Roehampton) gave his presentation within the Corporate Social Responsibility and Business Ethics Blog’s End-of-Year Seminar Series 2020 entitled “CSR, Whistleblowing and Human Rights” and organized by Dr. Costantino Grasso, Dr. Dawn Carpenter, and Dr. Luca d’Ambrosio. The series has been organised in partnership with the Centre for Financial and Corporate Integrity (CFCI) of Coventry University and the EU-funded research project VIRTEU (Vat fraud: Interdisciplinary Research on Tax crimes in the European Union – Grant Agreement no: 878619).
In his brilliant talk, Prof. Jérémie Gilbert discussed “Silencing human rights and environmental defenders: (SLAPP) Corporate Strategic Lawsuits against Public Participation“
Jérémie Gilbert is Professor of Human Rights Law at the University of Roehampton. Jérémie regularly serves as a consultant for international organisations and NGOs supporting human rights. As a legal expert, he has provided legal briefs, expert opinions and carrying out evidence gathering in several cases involving human rights violations. Over the course of his career, Jérémie has worked with several indigenous communities across the globe and extensively published on the rights of indigenous peoples, focusing inter alia on their right to land and natural resources. His latest article entitled “Indigenous Peoples and Litigation: Strategies for Legal Empowerment“, which has been published this year on the Journal of Human Rights Practice, is accessible for free on the publisher’s website as editor’s choice.
Summary of the Seminar (by Stephen Holden)
Prof. Jérémie Gilbert begins by providing a contemporary understanding of Strategic Lawsuits Against Public Participation (SLAPP). SLAPP is a strategic means of abusing the litigation and judicial process in order to silence individuals and organisations who would expose immorality, wrongdoing, or illegality. This often takes the form of civil enforcement through libel and defamation, but can also encompass pursuit of criminal prosecution in certain jurisdictions.
Through the use of SLAPP, organisations are able to divert attention away from the wrongdoing and to put a significant strain on the resources of the person who would draw attention to the wrongdoing, and to disrupt their wider work activities by requiring them to focus on the case. A further goal of a SLAPP suit is to enable the wrongdoer to continue their actions and continue to generate income without the requirement to change their conduct while the cases are ongoing. As such, a SLAPP suit does not have to succeed in court to be considered successful in its effect. Utilising the discrepancy in resources, organisations often file multiple suits, file suits in differing jurisdictions, take advantage of ‘forum conveniens’, and routinely appeal judgements.
Next, Prof. Gilbert considers an understanding of human rights defenders as whistleblowers, and their role in alerting the wider community to wrongdoing. This is contextualised against the situation in Thailand, the Natural Fruit Co Ltd case, and the Thammakaset Co Ltd case. Thailand has a criminal law on defamation, not only civil, which makes it an attractive jurisdiction on which to bring proceedings. This risk of criminal sanctions, including imprisonment, provides a significant deterrent to NGOs and rights defenders who would attempt to enforce human rights laws, and acts to empower rights abusers. Further, criminal cases may be brought against journalists, rights abuse sufferers, and regulatory bodies. This attack on the press and regulatory bodies has a substantial effect on their willingness to report potential abuses, and as such, there is a greater public interest argument regarding access to information and to report information.
In terms of remedies, Prof. Gilbert discusses the rights of freedom of expression, association, and peaceful assembly under Articles 19, 20, and 21 of the International Convention on Human Rights. Within recent years, there have been some developments on the emerging Corporations and a UN Human Rights Framework in order to ensure that states have an obligation to enforce rights, and not simply the negative duty to not infringe upon rights. Ideally, this would incorporate anti-SLAPP provisions in order to protect the rights to freedom of expression.
However, this may still be a number of years of being developed and implemented. As such, states are being encouraged to develop and enforce specific anti-SLAPP laws. The US, Canada, and Australia have begun to develop these systems in response to environmental concerns, however, this is broadly federalist in nature and allows the corporations to simply move states to avoid these provisions.
Accordingly, it would be a beneficial step for the EU to intervene and be able to enforce anti-SLAPP provisions within a wider European context. By setting a minimum European standard via a directive or other such instrument, this would prevent organisations state hopping, and create significant geography where organisations were not able to abuse the judicial system in this manner, therefore providing appropriate accountability for instances of wrongdoing.