SLAPPed but Not Silenced: Defending Human Rights in the Face of Legal Risks
Moneylife Digital Team 28 June 2021
Between January 2015 and May 2021, there were more than 3,100 attacks worldwide against community leaders, farmers, workers, unions, journalists, civil society groups and other defenders, who have raised the alarm about irresponsible business practices. More than 40% of these attacks were forms of judicial harassment. Strategic lawsuits against public participation (SLAPPs) are one of these tactics, shows an analysis conducted by Business & Human Rights Resource Centre. One of the cases mentioned in the analysis is the 2015 defamation case filed by National Stock Exchange (NSE) against Moneylife and its founders, Debashis Basu and Sucheta Dalal. But more about it later.
The Resource Centre identified 355 cases that bear the hallmarks of SLAPPs brought or initiated by business actors since 2015 against individuals and groups related to their defence of human rights and/or the environment. 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%). Nearly three-quarters (73%) of cases were brought in countries in the global south.
When human rights defenders are afraid to question reports about wrongdoing and deficits they observe, it affects the entire society," says Michelle Bachelet, UN High Commissioner for Human Rights. "SLAPPs have exactly that effect: they can impose sometimes significant fines and criminal sanctions, and thus intimidate human rights defenders and stop them from shedding light on critical issues. It is our shared responsibility to prevent SLAPPs from undermining everyone’s right to know."
SLAPPs are one tactic used by unscrupulous business actors to stop people raising concerns about their practices. SLAPPs can take the form of criminal or civil lawsuits brought to intimidate, bankrupt and silence critics. They are an abuse of the legal system by powerful actors. The tactic can intimidate defenders and drain the resources of community members, environmental advocates, and journalists, who speak out in support of human rights and the environment. The impact can have a broad chilling effect, deterring others from speaking out against abuse.
Although, the Resource Centre had identified 355 cases that bear the hallmarks SLAPPs brought or initiated by business actors since 2015 against individuals and groups, it says, this figure is likely to be the tip of the iceberg, recognising the time-specific nature of its research scope and the challenges of identifying SLAPPs and directly linking them to the companies involved. 
Here are the key findings of the Resource Centre...
  • We identified 106 companies and businesspeople involved in bringing or initiating these cases. At least 11 of these companies were repeat offenders, having been involved in more than one judicial proceeding. These included: Thammakaset (Thailand), Inversiones Los Pinares (Honduras), MMG Ltd Las Bambas (Peru), and Lydian Armenia (Armenia). 
  • The highest number of SLAPPs took place in Latin America (39%), followed by Asia and the Pacific (25%), Europe & Central Asia (18%), North America (9%), Africa (8.5%), and MENA (0.5%). Nearly three-quarters (73%) of cases were brought in countries in the Global South.
  • 63% of cases involved criminal charges. 
  • Most individuals and groups facing SLAPPs (65% of cases) raised concerns about projects in four sectors: mining (108), agriculture and livestock (76), logging and lumber (29), and palm oil (20).
  • The amount of damages sought by those filing SLAPPs in just 82 of the cases totalled to over $1.5 billion (information on damages sought was not available publicly for the remaining cases). 
Mary Lawlor, UN Special Rapporteur on the situation of human rights defenders, feels 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. She says, "SLAPPs drain the resources of defenders, take time away from human rights defence, and can intimidate others from engaging in legitimate human rights work."
"States have a duty to protect defenders against SLAPPs and should pass anti-SLAPP legislation in order to facilitate a safe and enabling environment where criticism is part of a healthy debate. Business actors also have the responsibility to commit to a clear public policy of a zero-tolerance to attacks on defenders and refrain from using this tactic to stop public participation. Space for defenders to carry out their work must be free from any interference or attack," the UN Special Rapporteur says.
A few governments have also taken steps to stop the use of SLAPPs by enacting anti-SLAPP legislation, including the United States, Canada, Australia, the Philippines, Indonesia, and Thailand. Such legislation is a vital tool for protecting defenders from SLAPPs and should be enacted by all governments as part of their duty to protect human rights.
The Resource Centre recommends investors and companies to commit to a clear public policy of non-retaliation against defenders and organisations 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," it says.
Governments should also reform any laws that criminalise freedom of expression, assembly, and association, and facilitate an environment where criticism is part of the healthy debate on any issue of public concern, it says, adding, 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," the Resource Centre says.
Coming back to the Rs100 crore defamation case filed by NSE, in September 2015, the Bombay High Court dismissed the case and ordered NSE to pay Rs1.50 lakh to Mr Basu and Ms Dalal, along with a penalty of Rs47 lakh to two hospitals from Mumbai. NSE initially filed an appeal against the order passed by justice Gautam Patel, but withdrew the case on 12 September 2017. (Read: NSE withdraws its Rs100 crore defamation suit against Moneylife, pays Rs50 lakh as cost and penalty)
After the lawsuit, both Mr Basu and Ms Dalal wrote and published another book, ‘Absolute Power: Inside story of the National Stock Exchange’s amazing success, leading to hubris, regulatory capture and algo scam’. This book is being sold like a hot cake like their earlier book, ‘The Scam: from Harshad Mehta to Ketan Parekh’ and includes JPC Fiasco and Global Trust Bank scams. 
Here is the link to order your copy of ‘Absolute Power’, if you have not already bought one. 
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