Vexatious lawsuits: Corporate use of SLAPPs to silence critics
“Individuals and organisations that work to defend the rights of communities harmed by extractive industries in Africa are facing ongoing threats, including strategic lawsuits against public participation which our organisation has also faced. We have just launched the Coalition Against SLAPPs in Africa (CASA), which aims to mobilise actors at a continental level to defend against SLAPPs by supporting public watchdogs and advocates and challenging a culture of corporate bullying.
"Collective action is vital to fight against this tactic aimed at stopping the work of human rights institutions, movements, and activists.”
Darlington Muyambwa, Southern Africa Resource Watch
Every day, people across the globe raise concerns about business-related harm to their communities, environments and rights, sometimes at great personal cost. These defenders face a range of attacks, including abuse of legal systems, to deter peaceful protest and stop their legitimate human rights work. Judicial harassment – including strategic lawsuits against public participation, or SLAPPs – has made up more than half of the attacks against human rights defenders raising concerns about business practice since we began tracking in 2015. This form of abuse presents a grave threat to defenders’ participation in peaceful public discourse around operations and activities which affect their lives.
SLAPPs masquerade as legitimate lawsuits and are frequently initiated by a private party (such as a company, owner of a company, or employees at a company) against people and groups for exercising their rights to participate in, comment upon or criticise matters of public concern. SLAPPs are frequently filed after individuals or groups express a critique of the plaintiff’s activities, such as by publishing a report, engaging in a peaceful protest, posting on social media, or participating in an academic event. As well as diverting time away from human rights work, SLAPPs have a chilling effect on the exercise of freedom of expression, both by the defendant at issue and often for others wishing to speak out against abuse. Like other non-lethal forms of attack against human rights defenders, SLAPPs can also precede fatal violence or be accompanied by other forms of intimidation.
SLAPPs typically bear several hallmarks. The first is that the remedies and sanctions sought are severely disproportionate to the conduct the lawsuit alleges. Second, plaintiffs use the litigation process to harass third-party critics (e.g. through the discovery process). Third, the lawsuit appears to be part of a wider public relations offensive designed to retaliate against, bully or intimidate critics and civil society. They typically exploit the inequality of financial and human resources available to corporations versus the targeted defendants. And because “SLAPPs are designed to turn the justice system into a weapon to intimidate people who are exercising their rights [and] restrain public interest in advocacy and activism”, vexatious lawsuits like these also put significant pressure on public resources and waste judicial systems’ time on superfluous legal processes.
SLAPPs are partly made possible by law firms and lawyers agreeing to bring and represent these cases on behalf of business actors. Nonetheless, the legal community has an ethical responsibility and an important role to play in stopping the abuse of the law to silence peaceful dissent. Lawyers should advise prospective or current clients not to bring SLAPPs against defenders and refuse to provide legal representation in such cases. Lawyers can also provide critical support to individuals and groups facing SLAPPs, who are significantly under-resourced compared with the plaintiffs, through pro-bono legal advice and representation.
Our first analysis of the state of SLAPPs in June 2021 revealed that powerful business actors abuse legal systems worldwide to intimidate and silence defenders who speak out against corporate harms. Between January 2015-March 2023, we identified 437 lawsuits that bear the hallmarks of SLAPPs brought or initiated by 144 business actors. (More information about our methodology is available here). The highest number of cases occurred in Latin America, followed by Asia and the Pacific.
Although the legal nature of SLAPPs can differ depending on each jurisdiction, 310 of the cases we tracked included criminal charges. Nine in 10 cases involving criminal charges occurred in the Global South. The vast majority of these cases used libel and defamation laws and arguments based on damages, incitement to commit a felony, instigating a strike, computer-related crimes, anti-boycott laws, racketeering and conspiracy. The penalties for such crimes often involve lengthy prison sentences and allow for pretrial detention measures incarcerating human rights defenders during proceedings, which can last for years. More than a quarter (28%) of the cases we tracked included civil legal arguments, many seeking large damages and most occurring in the Global North.
Bosnia & Herzegovina: Female law students face defamation lawsuits
Sunčica Kovačević and Sara Tuševljak are 25-year-old law students who formed a group comprised of local community members and activists organising against the construction of small hydropower plants in the Kasindolska river in East Sarajevo, Bosnia and Herzegovina. This initiative raised concerns about the environmental and human rights impacts of hydropower plants operated by BUK d.o.o, a subsidiary of Belgian-based company Green Invest. In January 2022, Green Invest brought three defamation lawsuits, which bear the hallmarks of SLAPPs, against Sunčica and Sara and they have been threatened with further legal action. We sought a response from Green Invest in November 2022. The company stated the lawsuits were filed to stop defamation. A rejoinder from Riverwatch, EuroNatur, Foundation Atelier for Community Transformation – ACT, Save the Blue Heart of Europe, and Stop Building Small Hydropower Plants on Kasindolska River expressed support for the defenders.
Most individuals and groups facing lawsuits bearing the hallmarks of SLAPPs raised concerns about projects in four sectors: mining (128), agriculture and livestock (94), logging and lumber (35) and palm oil (28). This demonstrates a pattern of vexatious litigation by business actors in sectors heavily dependent on natural resources which are also linked to environmental harm and the climate crisis. Three in four of the lawsuits we tracked were brought against people raising land rights and/or environmental-related concerns.
Most cases were brought against individuals (87%) and at least 13% of the total cases we tracked included charges against groups or organisations.
Malaysia: Environmental group sued for defending rivers & forests
On 21 June 2021, logging company Samling Plywood filed a defamation lawsuit against SAVE Rivers, and its directors for publishing alleged defamatory statements. SAVE Rivers is a non-profit organization in Malaysia that supports indigenous rural communities to protect their land, rivers, and watersheds. The company sought an apology, an injunction stopping SAVE Rivers from reporting community claims, and RM5 million (around 1 million USD) in damages. SAVE Rivers has alleged that the logging concession was issued despite Samling not obtaining free, prior and informed consent from the Indigenous communities. A coalition of local and international organisations, including the Bruno Manser Fund and The Borneo Project, have called on Samling to drop the lawsuit.
In August 2021, the Resource Centre sought a response from Samling to these allegations. Samling stated the lawsuit aimed to prevent the spread of incorrect and negative impressions about the company and was not an attempt to prevent or hinder public participation in the certification process. SAVE Rivers’ rejoinder pointed out Samling’s lack of transparency, disregard for Indigenous-led forest conservation initiatives, failure to obtain free, prior and informed consent, and flaws in the available complaint mechanism. In June 2022, local communities in Penan successfully stopped Samling from logging in a nearby conservation area.
The scale of SLAPPs across the globe shows the need for urgent action to stop this abuse of legal systems. There has been positive progress – some countries have enacted anti-SLAPP laws, the UN Working Group on Business and Human Rights has issued guidance for States and business on the implications of the Guiding Principles on Business and Human Rights for protecting and respecting the vital work of human rights defenders, and civil society groups and defenders are to push back against this abusive tactic.
We call on States to fulfil their duty to protect the rights of defenders and for business actors and the legal community to respect the rights of defenders and avoid initiating SLAPPs. We recommend that:
Companies and investors:
Adopt and implement policy commitments which recognise the valuable role of defenders, reference specific risks to defenders, ensure effective engagement and consultation with defenders at all stages of the due diligence process, committing to zero-tolerance for reprisals throughout their operations, supply chains, business relationships and investments. Investors should review potential investees for their history of SLAPPs and avoid investing in companies with a track record of SLAPPs.
Reform any laws that criminalise freedom of expression, assembly, and association, and pass and implement:
- Legislation recognising the right to defend rights and committing to zero-tolerance for attacks
- Anti-SLAPP legislation
- National laws to implement the UN Guiding Principles on Business and Human Rights, including mandatory human rights due diligence legislation, and consult with defenders at all stages of these processes
Law firms and lawyers:
Refrain from counselling and representing companies in SLAPP suits.
Develop and update ethics codes to ensure SLAPPs are a sanctionable offence for members.
Detailed recommendations for all these actors to to address SLAPPs are available here.
SLAPPs resource hub
All our resources on strategic lawsuits against public participation
SLAPPed but not silenced: Defending human Rights in the face of legal risks
SLAPPs in Latin America
2022 regional analysis
Corporate Legal Accountability resource sheet
Human rights defenders & business in 2022
Global analysis: People challenging corporate power to protect our planet
Defending defenders: Challenging malicious lawsuits in Southeast Asia
Corporate Legal Accountability Annual Briefing 2020