Protecting Activists from Abusive Litigation
SLAPPs in the Global South and How to Respond
PUBLISHED: JULY 2020
In Thailand, an agricultural company files more than a dozen suits against at least 20 defendants, targeting workers, journalists, and activists who had spoken out against alleged labor abuses at the company’s chicken farm. In India, an association of pesticide manufacturers brings a civil defamation suit against journalists that had reported on the harmful health and environmental effects of pesticide use. In the Philippines, a mining company files suit against 85 defendants who had conducted a peaceful protest near the company’s mining site, after the company’s own security forces used lethal violence against the protesters. In South Africa, an Australian mining company files suit against environmental activists who had criticized a company mine during a lecture at a local university.
What do these suits have in common? They are all “SLAPPs,” or “Strategic Lawsuits Against Public Participation”: suits filed not to secure relief, but to use the risks and costs of litigation to defuse criticism and opposition and discourage the exercise of fundamental freedoms. SLAPPs have long been prevalent in the Global North, but SLAPPs are also being used in the Global South to silence activism.
In Protecting Activists from Abusive Litigation: SLAPPs in the Global South and How to Respond, ICNL presents the first cross-regional survey of SLAPPs in the Global South, along with the first rigorous comparative analysis of anti-SLAPP policy responses undertaken in the Global North and the Global South. Our survey shows that SLAPPs pose a serious threat to the exercise of fundamental freedoms in the Global South, particularly for activists, civil society organizations, journalists, and community members who dare to criticize powerful entities.
Our survey, which is far from comprehensive, has identified 82 reported SLAPPs filed in Thailand, India, the Philippines, and South Africa – the most fertile fields for Southern SLAPPs – as well as Indonesia, Malaysia, Armenia, Sierra Leone, and Honduras. Key features of SLAPPs in our sample include:
- Half of the cases in our sample (41 cases) involved criminal proceedings.
- The most frequent SLAPP targets in our sample were activists and civil society organizations (CSOs) (38 cases, or 46%); journalists and publishers (17 cases, or 21%); and leaders and members of local communities (15 cases, or 18%).
- Nearly all of the cases in our sample – 75 cases, or 91% – were brought by private companies or company officials, with 34 of these cases (41%) brought by mining companies and 28 cases (34%) brought by companies associated with agricultural operations.
- Where the cause of action or charge was reported, the suit was based at least in part on a defamation charge, either civil or criminal, in 66 of 75 cases (88%).
- Of the 33 suits in our sample brought as civil actions, claims in 17 cases (52%) exceeded 1 million USD, with the average claim exceeding 10 million USD.
- Of the 48 cases in which a disposition has been reported, the initial or final disposition favored the plaintiff in 10 cases (21%), while the defendant unequivocally prevailed in 37 cases (77%).
POLICY RESPONSES TO SLAPPS
However, our analysis also shows that there is a sizable body of experience regarding policies that can be implemented to effectively counter SLAPPs, including enacting protections for public participation; creating expedited dismissal procedures for SLAPPs; permitting recovery of costs by SLAPP targets; imposing compensatory and punitive damages, and levying penalties and other strictures, on SLAPP filers; and reforming SLAPP causes of action to lessen the potential for abuse.
We offer eight recommendations for how further anti-SLAPP responses in the Global South should be designed:
- Exhibit care in designing and advancing these responses;
- Focus initial anti-SLAPP efforts on bolstering protections for public participation;
- Reform defamation laws to eliminate criminal liability, or to establish protections aimed at preventing the abuse of criminal defamation suits;
- Implement expedited dismissal procedures, cost-shifting mechanisms, and damages provisions in defamation cases arising out of non-commercial communications on matters of public interest;
- Authorize more stringent penalties when a court finds a defamation claim was filed for purposes of harassment, including veil-piercing personal liability and a bar on filing related claims;
- Accomplish reforms by legislative act or presidential or prime ministerial decree;
- Undertake further study to assess the prevalence of SLAPPs in Southern jurisdictions, and to identify other causes of action which should be subject to reforms like those outlined above; and
- Explore novel responses that address deficits and gaps in the approaches implemented to date in the North and South, or which better respond to the specific local characteristics of SLAPPs.