Companies abuse lawsuits to silence critics, even amidst a global pandemic

Maysa Zorob, Business & Human Rights Resource Centre, 15 June 2020

https://www.canva.com/photos/MADQ4q-HzBI-justice-law-hammer/

The judicial harassment of human rights defenders (HRDs) holding business to account has increased by 84% in 2019 compared to the previous year, reaching a five-year high. Amidst the global COVID-19 pandemic, companies and governments around the world continue to drag critics through the courts to silence them. In Europe, 116 organizations just called on the European Union (EU) to implement a directive to “end gag lawsuits used to silence individuals and organisations that hold those in positions of power to account.”

 

Silencing Critics

The work of human rights defenders to expose harm by companies around the world is proving to be increasingly crucial. In the face of massive impacts of a global pandemic, climate crisis, shifting economic models, and increased migration, HRDs speak up for fairness and sustainability in business operations and global markets. Tragically, some companies think otherwise. Rather than listen and act on the information defenders share, a growing number of unscrupulous companies retaliate against those who criticise them by filing Lawsuits Against Public Participation (SLAPPs). SLAPPs seek to manipulate the judicial system by masquerading as legitimate legal claims, abusing laws (e.g. on libel / defamation) to target valid and protected speech or protest. 

SLAPPs can be effective in gagging critics: they take advantage of the prohibitive costs and time that it takes to litigate a case, and can result in prison sentences and other harmful physical, financial and psychological impacts on defenders. As importantly, they have a chilling effect on free expression, and disrupt legitimate collective action to defend the rights of workers and communities. SLAPPs take place in a broader context of judicial harassment by both governments and private parties who abuse legal and judicial systems to harass and silence critics. Business & Human Rights Resource Centre recorded 2,152 attacks against HRDs globally between 2015 and 2019. Roughly of 40% of these attacks constitute judicial harassment, with cases rising at an average rate of 48% a year. 

 

COVID-19

Mass layoffs in and shutdowns of supply chain factories, increased government surveillance, censorship & privacy, and increasing fears of unemployment, underemployment and working poverty are just a few examples of the harm reported in our dedicated portal on the impact of COVID-19 on business and human rights and COVID-19 Tracker. This makes the work of human rights defenders - including labour organizers, staff and members of civil society organizations, rural community leaders, organizers of peaceful protests and others- who shine a light on human rights abuses more important than ever. Sadly, the climate for human rights defenders and other critics is more and more hostile, as they are increasingly subjected to judicial harassment. 

Authorities in several countries are also using the pandemic to censor free speech and control the flow of information, including byprosecuting  whistle-blowers, and other critics. Meanwhile workers areprotesting the measures taken by their employers. This includes the lack of personal protective equipmentor adequate distancing measuresas well as wrongful termination. Workers critical of their employers – such as union leaders and other HRDs – are often the primary targets of lay-offs without compensation. At Amazon, several employees were allegedly fired for raising health risks for Amazon warehouse workers and/or for taking time off work to recover from COVID-19.

The increase in government restrictions on the one hand and protests on the other is creating a situation ripe for further judicial harassment of HRDs. Meanwhile, a number of trials and hearings have been suspended and courts closed, leaving many defenders in legal limbo. Other companies have filed new SLAPPs suits against HRDs, even during the pandemic.

 

Defense against SLAPPs

Lawyers have built different legal defenses to protect HRDs against SLAPPs, with some noteworthy successes in courtrooms; for example in Southeast Asia - a region which has become global hotspot for SLAPPs and other judicial harassment. As detailed in our latest Corporate Legal Accountablity Annual Briefing Defending Defenders: Challenging Malicious Lawsuits in Southeast Asia, lawyers successfully invoked constitutional norms to assert the defendants’ rights to freedom of expression; and to freedom of speech. Counter-claims against companies to expose the frivolous nature of SLAPPs and to seek damages for the harm suffered have also proven effective; and in cases brought against journalists, lawyers have invoked fair comment and qualified privilege as successful defences against SLAPPs. Courts in the region have played a critical role in protecting HRDs from SLAPPs by affirming their constitutional rights and acknowledging the importance of their work for the public interest; and in some cases, by criticising the companies involved.  

Acquittals in SLAPPs cases are bittersweet. They typically expose the frivolous nature of the lawsuit, affirming the innocence of the defender who had to endure
 unnecessary psychological and financial distress – often for years on end – in cases that courts should have dismissed at a much earlier stage. A case in point is the recent acquittal of Thai labour rights defender Sutharee Wannassiri and former migrant worker Nan Win on 8 June 2020. The acquittal ends an 18 month legal battle initiated by Thai poultry farm Thammakaset in retaliation for the defenders’ criticism of the farm’s labour rights practices and working conditions of migrant workers.

The lack of anti-SLAPP legal frameworks around the world and the restricted use of these laws where they do exist, means that 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. The high costs imposed on the defendant to litigate the case for years, the stress of being in litigation and the invasiveness of having to go through discovery can be enough to silence human rights defenders, even if the case against them is ultimately dismissed. Despite encouraging legal developments in the region to protect against SLAPPs, such as in Thailand, the Philippines and Indonesia, lawyers have made only limited use of these laws and procedures. 

 

The Way Forward 

 In order to effectively fight SLAPPs we need robust legal frameworks and policies 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 defenders and civil society (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. 

First and foremost, companies should refrain from and commit to not using SLAPPs or other forms of judicial harassment, commit to a clear policy of non-retaliation against HRDs and adopt a zero-tolerance approach on reprisals and attacks on HRDs. Investors should avoid investment in companies with a track record of SLAPPs; and communicate that they expect investee companies will not bring lawsuits with the intention of silencing critics, continuously monitor their use, and act consistently on their findings. Finally, governments should enact anti-SLAPPs legislation, which defines SLAPPs, allows for an early dismissal of such suits (with an award of costs) and penalises abuse; thus sending a clear message to businesses that an abuse of the legal and judicial system to silence human rights defenders will not be tolerated. 

***

 

For more information and analysis on SLAPPs, including case studies from Southeast Asia, emerging anti-SLAPPs regulation and legal defence strategies, see our latest Annual Briefing Defending Defenders: Challenging Malicious Lawsuits in Southeast Asia.