4 February 2022
The UN Working Group on Business and Human Rights, together with the UN Special Rapporteur on the situation of human rights defenders, and a group of civil society organizations are highlighting a key message from the 2021 UN Forum on Business and Human Rights: that States and business actors must take action to prevent the use of the judicial system to silence and intimidate defenders through strategic lawsuits against public participation.
The use of strategic lawsuits against public participation (SLAPPs) was included in the agenda of the recent UN Forum on Business and Human Rights . A joint session by the UN Working Group on Business and Human Rights, the UN Special Rapporteur on the situation of human rights defenders, and civil society organizations1 highlighted that SLAPPs are a global problem, and immediate action by States and business actors is needed to stop the use of this judicial tactic against people who are bravely and legitimately speaking out against injustice in the context of business operations. This message did not just come through in the session on SLAPPs, but reverberated throughout the Forum. SLAPPs were highlighted in the UNGPs 10+ Roadmap for the next Decade of Business and Human Rights as one of the key corporate practices most obviously inconsistent with commitments to respecting human rights, and which need to be tackled as a matter of priority.
The urgency of doing so is confirmed through recent research by the Business & Human Rights Resource Centre, which showed that SLAPPs are a global problem; the analysis identified 355 cases that bear the hallmarks of SLAPPs brought or initiated by business actors since 2015. According to this research, which was presented in the session, the highest number of SLAPPs took place in Latin America (39%), followed by Asia and the Pacific (25%), Europe & Central Asia (18%), Africa (8.5%), and North America (9%). Also, 63% of cases involved criminal charges. Those raising human rights concerns about mining, agriculture and livestock, logging and lumber, and palm oil sectors, have been particularly affected.
The session on ‘Increasing the protection of human rights defenders in the face of SLAPPs’, at the UN Forum highlighted that SLAPPs could take the form of civil or criminal lawsuits brought or initiated, by business actors that divert time, energy, and resources away from human rights defenders’ vital work and infringe upon a range of human rights, including the freedom of expression and assembly and association and involve psychological impacts. In some cases, SLAPPs can provoke self-censorship and deter defenders from doing their legitimate work. Weak regulatory frameworks protecting human rights defenders, and the use of criminal laws such as defamation and other libel laws are increasing the risks of SLAPPs. The session also underlined the role that the legal community plays in addressing the use of SLAPPs and called on them to refrain from representing business enterprises in SLAPPs cases.
Under the UN Guiding Principles on Business and Human Rights, business enterprises have a responsibility to respect human rights and to identify, prevent and mitigate human rights risks to human rights defenders. This is reinforced in the Guiding Principles on Business and Human Rights: Guidance on Ensuring Respect for Human Rights Defenders presented to the Human Rights Council in June 2021 by the Working Group, which included recommendations to States and businesses to address the problem of SLAPPs.
Speakers at the Forum presented the global trend of SLAPPs and shared personal experiences. The audience also learnt about the civil society push back against these vexatious lawsuits, in the form of coalitions in different regions, such as Protect the Protest in the US, the coalition against SLAPPs in Europe (CASE) and Asina Loyiko in South Africa, that are working to raise awareness about this issue at the local, regional and international levels, and pushing States and business enterprises to take action.
Although some States have already enacted anti-SLAPPs legislation and there are other similar initiatives in diverse regions, a lot more is needed. States should continue enacting Anti-SLAPPs legislation and introducing policies and law reforms to prevent criminal laws, such as criminal libel and defamation laws, from being used against human rights defenders who are simply doing their work. They should sanction business actors for using SLAPPs. States should ensure that judges and prosecutors are trained to recognise SLAPPs, identify frivolous complaints against human rights defenders, and put procedures in place to handle and respond to them. They should also give courts powers to dismiss a case if they consider the intention of the claim/prosecution is to distort facts concerning the work of a human rights defender, or harass, intimidate, threaten or take advantage of the defendant.
Speakers also specified that business actors should commit to a clear public policy of non-retaliation against defenders. A statement by the Investor Alliance for Human Rights is calling companies to adopt a zero-tolerance approach on reprisals and attacks on defenders in their operations, value chains, and business relationships and refrain from and commit to not using SLAPPs or other forms of judicial harassment to stop public participation and advocacy. Business enterprises should not be demanding huge sums for alleged damage to their reputation through alleged criminal libel. Furthermore, business enterprises should be exercising human rights due diligence to prevent any attack on, or reprisals against, human rights defenders.
The joint conclusion is that States, companies, investors and the legal community have a responsibility to prevent, and protect against, SLAPPs. It is time to take immediate action to create and facilitate a safe and enabling environment for human rights defenders in which criticism of business-related human rights abuse is an important part of seeking accountability and remedy. Anita Ramasastry, Member of the UN Working Group on Business and Human Rights observed that “SLAPPs should not be happening. Human rights defenders need to be seen as key partners who can assist businesses in identifying key human rights impacts. They should be part of a business enterprise’s stakeholder engagement and due diligence processes, instead of being seen as annoyances, troublemakers, obstacles or threats to be disposed of”.
1. The session was organized by the UN Working Group on Business and Human Rights, in collaboration with the Business & Human Rights Resource Centre (BHRRC), the International Service for Human Rights (ISHR), Front Line Defenders, OECD Watch, SOMO, Institute for Human Rights and Business, Publish What You Pay, Swedwatch and the Zero Tolerance Initiative.