Imagine that you are a lawyer, presenting your work and some legal cases you are involved in at a university, and that soon afterward, you receive notice that you are being sued for defamation.  This is exactly what happened to the Centre for Environmental Rights (CER) in South Africa.  In a presentation at the University of Cape Town in January 2017, two CER lawyers, Tracey Davies and Christine Reddell, stated that Mineral Sand Resources’ (MSR) proposal to mine the sand dunes of Xolobeni was “environmentally destructive”.  In May, they were notified that MSR (part of the Australian company Mineral Commodities) was suing them for defamation, along with a local community activist, Davine Cloete.  CER said that this lawsuit was a Strategic Lawsuit against Public Participation (SLAPP) – “Here is a message to corporates who think they can use lawsuits and other intimidation tactics to silence the voices of activists…We will fight back‚ we will continue to investigate corporate misdeeds‚ and we will rally support from partners – but most of all‚ we will not be silenced.”

SLAPPs are often filed by companies to intimidate and silence people seeking to participate in matters of public interest (local communities, trade unionists, journalists, NGOs, lawyers, whistle-blowers), tying them up in costly litigation processes until they abandon their criticism or opposition.  In most cases they have little likelihood of succeeding on their merits.  But even requiring victims of human rights abuse, NGOs, journalists and others to defend against these claims can threaten civic space and keep victims from accessing justice.  The NGO Sherpa is being sued in France by the construction company Vinci for defamation after filing a claim against Vinci over allegations of forced labour on its construction sites in Qatar.  According to Sherpa, SLAPPs have increased and so has the amount demanded by companies as damages, which are often far out of proportion to the means of those targeted in SLAPPs.  Sherpa has also said that given the financial risks of these suits, they lead to self-censorship by organizations, threatening freedom of expression.

SLAPPs occur in developed and developing countries alike; the following are just a handful of recent examples.  In Thailand, the lawsuits for defamation filed by the company Natural Fruit against Andy Hall, a British labour rights activists and researcher following a report alleging labour abuse against migrant workers in the company's factories received wide coverage.  Thammakaset Farm also filed a defamation lawsuit in Thailand against workers suing it over claims of forced labour and other workplace abuses at the poultry farm.  Defamation is a criminal offense under Thai law, and can carry a prison term.  In Honduras, the energy company DESA (Desarrollos Energéticos) brought a criminal defamation lawsuit against Suyapa Martínez of the women’s rights NGO Centro de Estudios de la Mujer.  She had publicly alleged that DESA was involved in planning the murder of the activist Berta Cáceres for opposing the dam-building project awarded to DESA; DESA’s claim was dismissed.  Last year in Canada, a judge explicitly called the defamation lawsuit brought by Taseko Mines against the Western Canada Wilderness Committee a SLAPP and “an attempt to use the litigation process to silence critics on a matter of public importance…In the context of a defamation action, seeking punitive damages may serve to silence critics”.  The case was dismissed but the company is appealing, and denies that it intended to silence its critics.

The US is seeing its own share of lawsuits brought by companies against advocates for speaking out against their businesses.  Murray Energy and its CEO Robert Murray sued TV comedian John Oliver for airing a TV sketch that criticised Murray’s mine safety practices, and that cited the collapse of one of Murray’s mines in Utah. The American Civil Liberties Union, in its amicus curiae brief in support of Oliver, described the suit as “ridiculous” and other legal experts have called the suit “frivolous” and “vexatious”.  In another case, Energy Transfer, the developer behind the Dakota Access Pipeline, brought a racketeering lawsuit against Greenpeace, Banktrack, Earth First! and other groups for allegedly having “manufactured and disseminated materially false and misleading information about Energy Transfer and the Dakota Access Pipeline” – alleging that they inflicted “billions of dollars of damage” against the pipeline.

In light of such legal attacks, some accountability advocates have decided to fight further and counter-sue the companies.  At the end of May 2017, Andy Hall filed a counter-suit against Natural Fruit.  “I was encouraged to initiate these litigations by migrant workers whom I continue to support in Thailand. After my criminal conviction, many workers and rights defenders in Thailand and even globally told me they hesitate to...report fully on abuses due to fear of negative repercussions. It is imperative that these two sets of criminal prosecutions claim space back for victims of rights abuses, exploited workers and human rights defenders to speak out with confidence about unlawful conduct by business and state actors,” said Hall.  He had the support of the international community, but most advocates at the local level do not, which makes things harder for them and make them more vulnerable.  The NGO CALAS (Centro de Acción Legal Ambiental y Social), which works to promote the participation of communities and respect for the collective rights of indigenous peoples in Guatemala, has also been sued by companies for defamation.  To seek justice against human rights defenders, it decided to start litigation against those companies.  This includes, against Repsa (over ecocide) and Minería de Guatemala whose license has been suspended for environmental crimes.

Increased reporting of SLAPPs in recent years has helped raise awareness about the issue and pressured governments to act.  Some have already taken positive steps.  The Australian Capital Territory, the province of Ontario in Canada and the state of California in the US have passed “anti-SLAPP” laws to ensure that the public can take part freely in public discussions without fear of reprisal.   NGOs are advocating for similar laws to be passed in other countries, including South Africa and France, but at this point, there are no planned bills in Europe.  Governments can take other measures to keep courts from being used against corporate accountability advocates, such as decriminalising defamation, as supported by international organizations (e.g., African Commission on Human and Peoples’ Rights, UN Special Rapporteur on Freedom of expression) and leading NGOs (Article 19, International Commission of Jurists).  A recent expert report commissioned by the French Government issued recommendations to the government on SLAPPs, including civil fines of up to 15,000 euros for bringing a lawsuit that hinders the freedom of expression of the defendant; and, for malicious prosecutions specifically targeting academics for statements made in their research activities, penalties of up to seven years of prison and 375,000 euros.   

Companies can also help prevent the shrinking of civic space by supporting human rights defenders who are legally harassed.  In the Andy Hall defamation lawsuit, the company S Group, which sourced from Natural Fruit, testified in 2016 in favour of the activist at his trial.  The company explained its decision: “…[A]s a responsible company we decided to testify, because S Group is part of the value chain of this case…It is in the interest of companies, too, to have a functioning civil society.”