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Opinion

14 Dec 2021

Author:
Maysa Zorob & Elodie Aba, Business & Human Rights Resource Centre

Anti-SLAPP legislation must outlaw judicial harassment of Human Rights Defenders

Shutterstock (purchased)

The work of human rights defenders (HRDs) to expose harm by companies around the world has never been more important. In the face of the existential challenges of a global pandemic such as COVID-19, climate crisis, shifts in the future of work, and increased migration, HRDs speak up for fairness and sustainability in business operations and global markets. Civic space is increasingly under threat as unscrupulous companies and governments around the world use the legal and judicial system to harass critics (judicial harassment).

Strategic Lawsuits Against Public Participation (SLAPPs) are a powerful tool to silence HRDs and other critics by forcing them into a costly fight for their freedom of expression and their organisations’ existence. SLAPPs take place in a broader context of judicial harassment. Since 2015, Business & Human Rights Resource Centre has recorded 3671 business-related attacks on HRDs globally. Almost half (48%) of these attacks constitute judicial harassment; and numbers are growing at an alarming rate.

Legal Defence against SLAPPs

Lawyers have built different legal defences to protect HRDs against SLAPPs, with some notable successes, as noted in our 2020 Corporate Legal Accountability Briefing on Malicious Lawsuits in South-East Asia. For example, lawyers successfully invoked constitutional norms to assert defendants’ rights to freedom of expression; and to freedom of speech, as a legal defence against SLAPPs. These individual successes notwithstanding, options for effective legal defence remain scarce without robust legal frameworks that outlaw SLAPPs and other forms of judicial harassment.

Anti-SLAPP Legislation around the Globe

In order to prevent companies from abusing the law to harass and silence HRDs and from undermining public participation, several countries have enacted anti-SLAPP legislation. As detailed in our 2020 Annual Briefing, Southeast Asia is particularly worth noting in this context. A global hotspot for SLAPPs - with 44% of all attacks on HRDs involving judicial harassment – it also is a pioneer for anti-SLAPP legislation. Three out of the 11 countries that constitute Southeast Asia have relevant pieces of legislation to guard against lawsuits that may restrict the work of HRDs: Thailand, the Philippines and Indonesia.

In Indonesia, Law No. 32/2009 on Environmental Protection and Management (Art. Article 66) and Law No. 18/2013 on the Prevention and Eradication of Forest Destruction (Article 78 (1) ban the filing of criminal or civil cases against persons “struggling for a right to proper and healthy environment”, and against journalists and informants who provide information under the law on the Prevention and Eradication of Forest Destruction.

In the Philippines, the 2010 Supreme Court Rules of Procedure for Environmental Cases includes explicit anti-SLAPP protections that enable courts to dismiss SLAPPs in a summary hearing before proceeding to a full trial. These Rules of Procedure also enable individuals involved in the assertion of environmental rights to raise the defence that the case filed against them is a SLAPP.

In Thailand, section 161/1 of the Criminal Procedure Code now includes a reference to the protection of defenders’ rights to freedom of expression against SLAPPs. The new section (amended in 2019) allows the Court of Justice to dismiss any criminal case at the filing stage of the lawsuit (i.e. before proceeding to a full trial) if the court determines that the cause of action stems from “ill intention (1) to harass (2) to take advantage over a person (3) to gain any unlawful benefits or (4) to achieve any corrupt underlying objectives”.

While these laws are limited in scope and lawyers have made little use of them to date, they are nevertheless a key tool to push for greater reform in anti-SLAPP legislation.

In the Global North, the US, Canada and Australia currently have anti-SLAPP laws. In the US, 31 states and the District of Columbia have enacted such laws and in Canada the provinces of British Columbia, Ontario, and Quebec have legislated against this form of judicial harassment. Australia’s Australian Capital Territory – Protection of Public Participation Act 2008 also includes such protections. To varying degrees, these laws include provisions that allow for the early dismissal of cases, the suspension of the discovery process, and/or the recovery of litigation costs for the defendants; and have already proven successful. For instance, in the malicious lawsuit filed by Resolute Forest against Greenpeace in the US, the court dismissed the case and awarded the defendants their attorneys’ fees pursuant to the California anti-SLAPP statute.

Where anti-SLAPP legislation does not yet exist, civil society continues to advocate for such laws at regional and domestic levels. Recently, the European Commission conducted public consultations for an anti-SLAPPs directive to protect HRDs and journalists against claims filed against them when reporting public interest issues to inform the general public. A recent opinion of the European Economic and Social Committee underlined the necessity of a legal ban on SLAPPs, and the Coalition Against SLAPPs in Europe (CASE) has released a paper calling for an EU anti-SLAPP law.

In the UK, the UK Anti-SLAPP Coalition released a policy paper that explores legislative and regulatory initiatives to counter SLAPPs, including a potential domestic anti-SLAPP law. In Colombia, a proposal is being discussed in Parliament, to introduce anti-SLAPP provisions and amend the General Code of Procedure and Law 906 of 2004, to eradicate judicial or litigious harassment aimed at curtailing the rights to freedom of expression, information and association.

What’s Next?

Anti-SLAPP legal frameworks are a key tool to protect HRDs from judicial harassment. Without such frameworks, lawyers have limited tools at their disposal to fight SLAPPs in the courts. This undermines their ability to get SLAPPs dismissed in their own right, to highlight their frivolous nature, and to expose companies’ judicial harassment. Meanwhile, most courts have few avenues to dismiss SLAPPs before proceeding to a full-fledged trial, which is typically lengthy and costly. Where these avenues exists, courts must use them to protect HRDs from abusive litigation, and in several cases have already done so.

In order to effectively fight SLAPPs globally, we need robust legal frameworks that prevent companies from filing SLAPPs in the first place and allow courts to identify, call out and dismiss them as soon as they are filed. To make this happen, governments, businesses and investors, alongside civil society and defenders (and the lawyers who defend them), need to act decisively for the protection of civic freedoms and human rights defenders in the face of this growing threat.

Countries like Australia, Canada, Indonesia and Thailand have already taken important steps on outlawing SLAPPs and other forms of judicial harassment. It is time for other governments to follow suit in an effort to protect their civic spaces and with it, democracies around the world.

Corporate Legal Accountability Quarterly Update

Our December update explores anti-SLAPP legislation around the world as a key tool to prevent and outlaw judicial harassment of Human Rights Defenders