23 Feb Human Rights Due Diligence as a Tool to Counter the Rise of SLAPP Suits
[Jacob Bogart is a human rights lawyer from the United States specializing in business and human rights in Southeast Asia.]
On 19 December, three women human rights defenders in Thailand went to court again to face criminal defamation charges brought by Thammakaset Co. Ltd., a Thai-owned poultry company that has filed 39 retaliatory civil and criminal lawsuits against 23 individuals since 2016. The cases stem from a 2016 labour complaint in which 14 migrant worker employees of Thammakaset alleged labour abuses, including failure to pay minimum and overtime wages and provide adequate leave to workers. In 2019, the Thai Supreme Court upheld a lower court’s order requiring Thammakaset to pay 1.7 million Thai Baht (US$51,470) to the workers. In retaliation, Thammakaset has sued anyone associated with the case, including the migrant workers, their lawyers, journalists, and the three women human rights defenders noted above who posted on social media in support of human rights defenders facing lawsuits brought by Thammakaset. These lawsuits—all of which Thammakaset has lost—were filed to harass, silence, and intimidate the people criticising the company for its treatment of migrant workers. Such suits are known as Strategic Litigation Against Public Participation (SLAPP) and are increasingly used by companies around the world to prevent public scrutiny of their operations and conduct.
How do we counter the rise of SLAPP suits? Much of the effort to address SLAPPs has been focused on reforming the laws that govern such suits. In Thailand, for example—a country that has been the host of hundreds of retaliatory suits—the Government amended key sections of their criminal and civil procedural code following recommendations to do so from the U.N. Human Rights Committee, the Working Group on Business and Human Rights, and civil society. The reforms have proven inadequate: in the years since the change in law, SLAPP suits continue to be brought, and it is not clear that judges have relied on the new provisions to dismiss SLAPP suits. Indeed, even when Thai defence lawyers raised the provisions to request a dismissal in some of the cases above, judges sometimes did not consider them and allowed the cases to continue to trial. Therefore, while legal reforms are worthwhile, the experience of Thailand demonstrates that such measures cannot be the only tool activists use to oppose SLAPP suits.
Instead, civil society, activists, and companies should embrace human rights due diligence (HRDD) as a tool to combat the rise of SLAPP suits. With forthcoming EU legislation requiring HRDD, as well as the plethora of existing and pending national laws aimed at combatting violations in supply chains, now is the right time to use this underexplored tool to curb the use of SLAPP suits by companies and shift the balance of power from corporations to human rights defenders. To explain how this could work, this article will briefly explain what HRDD is, how SLAPP suits fit within the UN Guiding Principles’ definition of “adverse human rights impact” and what companies should do when they discover a business partner is filing SLAPP suits.
Enshrined in the U.N. Guiding Principles on Business and Human Rights, HRDD is a process for companies to “identify, prevent, mitigate and account for how they address their impacts on human rights” that the “business enterprise may cause or contribute to through its own activities, or which may be directly linked to its operations, products or services by its business relationships” (emphasis added). Company A may not directly cause an adverse impact on human rights, but may be tied to it due to their relationship with rights-impacting Company B. When such a dynamic occurs, Company A bears an obligation to mitigate the harm by meaningfully consulting with affected groups and other stakeholders to determine the appropriate action to take, including dissolving its business relationship with Company B, providing for remediation, or other actions (more on this below).
Do SLAPP suits count as an “adverse human rights impact”? The OECD Due Diligence Guidance for Responsible Business Conduct includes “reprisals against civil society and human rights defenders who document, speak out about, or otherwise raise potential and actual human rights impacts associated with projects” as an example of an adverse human rights impact. While its text is still being negotiated, the much-heralded EU Directive on Corporate Sustainability Due Diligence similarly includes the violation of “the right to freedom of association, assembly, the rights to organise and collective bargaining,” as an adverse human rights impact. And the Working Group on Business and Human Rights has also found that the “filing of SLAPPS is aimed at … restricting [human rights defenders’] access to remedy … and restricting the freedoms of expression and of assembly and association.”
While SLAPP suits clearly have adverse impacts on the defendants in those cases, companies conducting traditional HRDD may not consider such suits as within the ambit of their responsibility when filed by a business partner. Such oversight is due, in part, to the facade of legality SLAPP suits benefit from. By using formal legal processes, companies create the appearance of lawful, rights-respecting conduct, even as they file meritless and retaliatory lawsuits against human rights defenders. Companies conducting HRDD therefore must be highly alert to the risks of such lawsuits by their business partners. The Working Group emphasized this point, explaining that “general human rights due diligence may overlook specific harms faced by defenders, including criminalisation of their lawful activities, reprisals, and other attempts to silence them.”
SLAPP suits in Human Rights Due Diligence
What should an enterprise do when it discovers through HRDD that it is tied to SLAPP suits through the operations, products, or services of its business relationships? There are a range of actions and steps an enterprise should take in this situation based on leverage, consultation, and mitigation.
First, the UNGPs advise business enterprises to use “leverage to prevent or mitigate the adverse impact.” However, the appropriate action to take will vary depending on the degree of leverage the enterprise has “over the entity concerned, how crucial the relationship is to the enterprise, the severity of the abuse, and whether terminating the relationship with the entity itself would have adverse human rights consequences.” Where an enterprise has leverage, it should use it to convey an expectation, either publicly or privately, that it will not tolerate harmful impacts to human rights defenders, such as SLAPP suits.
Second, due to the sensitive nature of SLAPP suits, companies should always consult with human rights defenders when formulating what steps to take to mitigate the adverse impact. The Working Group provides recommendations in this regard, including consultation with affected communities and “relevant local, national, and international organisations, to determine the appropriate course of action.” When the adverse impact is a SLAPP suit, the Working Group recommends that companies “get involved, when human rights defenders want this, in cases directly e.g., by submitting amicus curiae briefs to a court, or by intervening in a court case to assist the court in better understanding a particular business and human rights aspect of a case.” Companies can also have an important role to play in publicly raising awareness of and signalling solidarity with defendants in ongoing SLAPP suits by writing or signing open letters to States where the HRD is being put on trial.
Third, companies can also seek to engage directly with the enterprise bringing the SLAPP suit to assist them in mitigating the harm caused. In so doing, the company can either continue its business relationship throughout the course of mitigation efforts, temporarily suspend the relationship, or disengage completely if it deems mitigation is not feasible. In the context of SLAPP suits, complete disengagement may be the best course of action should a company refuse to drop the retaliatory lawsuits after repeated requests and engagement.
Fourth, companies can require that business partners conduct HRDD that explicitly includes SLAPP suits as an adverse human rights impact. Such contractual clauses could have powerful consequences downstream and bring human rights defenders into HRDD processes beyond the first tier of the value chain. Particularly as the EU Directive is currently being negotiated and drafted, it is important that attacks on human rights defenders, including SLAPP suits, are explicitly recognized as an adverse impact and one that must figure in a company’s HRDD.
Just as a company does not want to be associated with an enterprise that uses child labour, so too should the use of SLAPP suits in a company’s value chain prompt immediate action. The proposed HRDD legislation in Europe provides an important opportunity to clarify that SLAPP suits are an adverse human rights impact, one that companies must identify, prevent, and mitigate in the business operations, products, or services of their business relationships, even if they have not directly contributed to it themselves. Thorough HRDD will also reveal the scale and scope of SLAPP suits in companies’ value chains, allowing companies to take appropriate action and consult with communities to mitigate the harm.
The continued rise of SLAPP suits is not inevitable, and we must use every tool at our disposal, including HRDD, to counter it.