Increasingly, businesses globally are using lawsuits to try and silence their critics, says a recent report from the Business and Human Rights Centre (BHRC). Such lawsuits are often referred to as SLAPP suits — Strategic Lawsuits Against Public Participation. BHRC notes, “SLAPPs masquerade as ordinary lawsuits but in essence constitute an abuse of the legal system… SLAPP can take the form of criminal or civil lawsuits brought to intimidate, bankrupt and silence critics.” Most people may have never heard the term SLAPP, but they are likely feeling its chilling effects, as public debate over the social and environmental impact of global businesses is significantly impaired by both the threat and actuality of such lawsuits.
It’s an important trend to pay attention to, as the world increasingly tries to reckon with the notion that any business can be a force for good or evil depending on how it’s led and engages with civil society writ large. As the report notes, “Protecting these defenders’ freedom of expression and association is vital to our democracies, transparency in markets, and protection of workers and communities,” and includes critical recommendations for investors, businesses, law firms, and policymakers alike.
Mary Lawlor, UN Special Rapporteur, opens the report with the following message:
“Human rights defenders, individually and collectively as part of their organizations, movements and communities, play an essential role in sustainable and rights-respecting economic development. They are at the forefront of protecting our environment, the health and safety of their communities, and human rights. Human rights defenders are not anti-development, but they are often painted as such and face a range of attacks for the mere reason of speaking up against business-related human rights harms.
Business actors are often involved with these attacks, which include killings, beatings, threats, judicial harassment, and other forms of violence. The criminalization of defenders and judicial harassment – a range of legal tactics used by states and business actors to violate the rights of defenders – is a growing problem worldwide…It is extremely concerning how SLAPPs have become a staple in the manipulation of the judicial system by business actors to stop legitimate human rights work, restrict civic space, and repress dissenting voices. SLAPPs drain the resources of defenders, take time away from human rights defense, and can intimidate others from engaging in legitimate human rights work.”
The report details 355 lawsuits the organization has tracked since 2015, largely filed by companies engaged in mining, agribusiness, palm oil production, and logging. In 82 cases where such information was available, they were able to identify over $1.5B of damages claimed. If such a value remained consistent across the 355 cases, this would imply roughly $6.5B of damages being claimed overall — from individuals and organizations that typically have extremely limited resources both in terms of access to legal resources and actual assets.
This report is, in many ways, personal, as one of the 355 lawsuits they speak to was filed against me personally, and my company, Candide Group. In March of 2020, I was served with a lawsuit alleging defamation by CoreCivic and as much as $60M of damages for having written on Forbes.com that private prisons separate families and lobby for harsher policies. Business and Human Rights Centre qualified it as a SLAPP suit, and a judge issued a ruling in my favor on November 19th in response, concluding, “Truth being a defense, the complaint is DISMISSED WITHOUT LEAVE TO AMEND.” CoreCivic has appealed despite this ruling, as noted in their response statement to BHRC.
Most of the lawsuits BHRC has tracked, however, are addressed at activists in the Global South, principally Latin America and Asia. To take one example from Central America that shows the intersection of corporate lawsuits and government complicity; “The Inversiones Los Pinares mining company with operations in Honduras has criminally denounced at least 32 water and environmental defenders from the Municipal Committee for the Defense of Common and Public Goods – Comité Municipal de Defensa de Los Bienes Comunes y Públicos (CMDBCP) in the municipality of Tocoa, Colon, in response to their resistance to the company’s iron oxide mining project inside a national park and protected area. CMDBCP has filed criminal complaints demanding an investigation into the illegal manner in which the licenses required to operate the mine were granted, as well as for environmental contamination, but there has been no response by the State. Meanwhile, the Public Prosecutors Office filed charges against the defenders in response to the complaints filed by the company concerning the installation of a legitimate protest camp in September 2018. Eight defenders have been in arbitrary pretrial detention for more than 20 months awaiting trial on aggravated arson and deprivation of liberty charges.” Inversion de Pinares did not respond to BHCR’s request for comment.
Given the global nature of capital and consumption, it’s critical that we keep our eyes cast widely on the activities of companies around the world, particularly when it comes to attacks on activists looking to uphold environmental standards that ultimately provide benefit to us all.
The Way Forward: Companies Can Make Proactive Commitments to Protect Activists
Not all companies find suing activists to be a prudent use of shareholder money. In fact, some view particular human rights activists as critical eyes and ears on the ground to help identify risk, and seek to maintain open lines of communication. BHRC notes that “a cluster of progressive companies have adopted a zero-tolerance approach to violence against defenders and understand defenders’ critiques as important early warnings of abuse or risks in their operations and supply chains. Adidas, for instance, has a human rights defenders’ policy which states that both the company and its business partners should not ‘inhibit the lawful actions of a human rights defender or restrict their freedom of expression, freedom of association, or right to peaceful assembly.’”
In general, BHRC provides the following recommendations:
Investors and companies should commit to a clear public policy of non-retaliation against defenders and organizations that raise concerns about their practices, and adopt a zero-tolerance approach on reprisals and attacks on defenders in their operations, value chains, and business relationships. As part of this, investors should review potential investees for their history of SLAPPs and avoid investing in companies with a track record of SLAPPs. They should also urge portfolio companies to drop lawsuits that might be SLAPPs and provide an appropriate remedy in consultation with the defenders affected.
Governments should reform any laws that criminalize freedom of expression, assembly, and association, and facilitate an environment where criticism is part of the healthy debate on any issue of public concern. They should also hold businesses accountable for any acts of retaliation against defenders.
Law firms and lawyers should refrain from representing companies in SLAPP suits.
Bar Associations should develop and update ethics codes to ensure that SLAPPs are a sanctionable offense for members.
As SLAPPs become more consistently and publicly recognized as a tool and trend of intimidation, they will hopefully become less easily tolerated by investors, entrepreneurs and legal professionals who seek to align their business practices and public reputations with their values.
Thanks to Jasmine Rashid for her contributions to this piece. Full disclosures related to my work available here. This post does not constitute investment, tax, or legal advice, and the author is not responsible for any actions taken based on the information provided herein. Certain information referenced in this article is provided via third-party sources and while such information is believed to be reliable, the author and Candide Group assume no responsibility for such information.
CoreCivic filed a lawsuit in March of 2020 against author Morgan Simon and her firm Candide Group, claiming that certain of her prior statements on Forbes.com regarding their involvement in family detention and lobbying activities are “defamatory.” While we won dismissal of the case in November of 2020, CoreCivic has appealed such that the lawsuit is still active.