Crimes Against Freedom: Strategic Lawsuits Against Public Participation
As the world ascends into an era of increased connectivity and transparency of daily occurrences through the lens of social media, many businesses and their practices - particularly those involving employment practices and environmental resource usage - have come under intense public scrutiny. In response to this intense scrutiny and in defense of public revelations of exploitative business practices, many businesses employ a tactic of legal manipulation known as SLAPP: Strategic Lawsuit Against Public Participation.
SLAPPs involve the employment of lawsuits to distract, discredit, and dismiss public criticism and, as a result, the claimant. As a result, SLAPPs silence criticism and harm the fundamental right to free speech. According to a report compiled by the Business and Human Rights Resource Center (BHRC), from 2015 to 2020 there were over 355 SLAPPs recorded globally, with the highest recorded in Latin America. The report also reveals that many SLAPPs happen in the mining, agribusiness, logging and palm oil industries.
This article will expand on the purpose and hallmarks of SLAPPs; provide an overview of a SLAPP case involving the Centre for Science and Environment in India (CSE) and Pepsi-Co and discuss potential reforms and recommendations.
Purpose Of SLAPPs
Some of the main reasons why certain companies choose to employ SLAPPs include reputational management, attempting to dismiss public concerns and trying to divert attention from public issues. With regards to reputational management, businesses employ SLAPPs as a way to regress corporate liability. For instance, they use legal action to discredit public corners about the business’ harmful practices. Likewise, since corporations have significantly more resources than the individuals or organisations who criticise the cooperation, they are able to easily dismiss public concerns by threatening financially draining lawsuits. The other reason why companies employ SLAPPs is to divert attention away from political and public issues. This includes poor labour standards and the unlawful exploitation of environmental resources.
Given that the overall purpose of SLAPPs is to avoid investigation into concerns raised by the public over business practices, the ability of communities, individuals and media outlets to voice their concern is threatened. Thus, employing SLAPPs violates the United Nations Guiding Principles on Business and Human Rights, which states that businesses should:
“avoid infringing on the human rights (inclusive of the right to free speech) of others and should address adverse human rights impacts with which they are involved”.
Hallmarks of SLAPPs
The purpose and hallmarks of SLAPPs go hand in hand, as their purpose is evident when their hallmarks are recognised. According to the BHRC report, some hallmarks of SLAPPs include but are not limited to:
They are brought by businesses engaging in judicial harassment, involving filing criminal charges, defamation-related charges, hiding behind computer crime laws, anti-boycott laws, racketeering and conspiracy laws or employing tactics such as arbitrary detention, abusive subpoenas and fabricated charges against individuals or organiSations that have spoken out about the business practices.
They are usually filed against those who expose the businesses' human and environmental rights abuses. For instance, against individuals, indigenous leaders, journalists, community members, or international organiSations that raise awareness on human rights violations (such as poor labor standards in Thammakaset, Thailand) or environmental degradation and impingement on native land rights by business practices.
The main intention is to intimidate claimants into submission and force them to dismiss their claims and instill public fear that will silence future claims against the business.
They are usually brought by businesses that are more powerful and resourceful than the claimant.
They often come after the release of a critique, media post, report, article or campaign against the company's practices.
Recognising these hallmarks is essential, as it aids in dismissing SLAPPs on the grounds of infringement of civic rights and duties. Secondly, knowing the hallmarks of SLAPPs makes their identification easier so that adequate reforms and anti-SLAPP legislation can be implemented to protect freedom of speech and encourage the public to hold businesses accountable.
Case study: CSE v. PepsiCo and Coca-Cola
In August 2003, the Centre for Science and Environment in India (CSE) released a study on the pesticide residues found in soft drinks - specifically those found in Pepsi and Coca-Cola. The report concluded that the two soft drinks had pesticides in quantities not considered safe for human consumption (and, as a result, would have detrimental effects on people's health) and that the soft drink industry as a whole was largely unregulated. For instance, the adoption of food safety and quality standards, and the adherence to legislation such as the Prevention of Food Adulteration Act 1954, were voluntary. What the CSE wanted was to use their study to raise awareness and push for higher and mandatory food and soft drink standards to safeguard people's health.
However, because the public reaction to the report was not at all favorable to PepsiCo and Coca-Cola (with some state governments banning the sale of them and overall sales dropping), the two companies decided to hold press conferences and utilise various PR tactics to attack the credibility of the CSE and the individuals working for it.
PepsiCo went a step further and filed a writ petition in court, stating that because the CSE was a non-governmental organisation, they had no legal authority or recognition and thus the report should not carry any credible value or binding effects (such as the creation of governmental standards to regulate food and beverages).
PepsiCo also asked the court to stop the CSE from publishing statements and ask them to withdraw certain materials on their website. Both acts were direct attacks on free speech. Additionally, the PepsiCo Chief wrote articles attacking the credibility of the CSE and called for regulation of Non-Governmental Organisations instead of the soft drink industry.
Fortunately, this SLAPP did not succeed as the PepsiCo lawyer, Harish Salve, ensured that the SLAPP was dropped and that personal attacks against the CSE were withdrawn. However, the CSE still faces similar attacks against its recommendation of a mandatory standard for regulating food standards.
Reforms and Recommendations
SLAPPs have many negative effects: the continuation of harmful business practices; the lack of protection of public opinion and freedom of speech; the slowing down in activism due to fear of expensive and personally damaging persecution and a rise in populism as more individuals feel disregarded by powerful corporate stakeholders. In recognition of these chilling adverse effects, some businesses and states have policies and legislation in place to prevent the use of SLAPPs.
For instance, the United States, Canada, Australia, Indonesia, the Philippines and Thailand all have some form of anti-SLAPP legislation. These include motions to dismiss cases identified as SLAPPs in the early stages and the recovery of litigation costs for claimants. Similarly, some businesses such as Adidas have policies in place that condemn violations against those who raise public concerns about their business practices and instead choose to view critiques as constructive and early warnings of harmful business operations.
However, the scope of the legislation and policies need to be expanded to cover investors, companies, governments, law firms and bar associations. According to the recommendations provided in the BHRC report, investors and companies should follow a policy of non-retaliation against defenders and organisations that raise concerns about their operations and should view potential employees with caution to avoid investing in companies with a history of utilising SLAPPs. Companies and investors could instead engage in consultation with defenders to address the public concerns instead of dismissing them.
Moreover, governments should reform laws that criminalise freedom of speech and hold businesses accountable for the unlawful act of retaliation against defenders. Law firms should refrain from representing firms in SLAPP suits and bar associations should update ethics codes to ensure SLAPP is an offense for members who engage in them.
These recommended reforms will not only allow criticism to form a healthy part of the debate, but will also improve business public relations and public conditions and, most importantly, protect the public and their fundamental rights to voice their concerns on harmful activities.
SLAPPs are a tactic used by corporations to silence people into submission. They take many forms, from defamation lawsuits to criminal charges, and bear a set of hallmarks that are important to remain aware of for the sake of protecting our freedoms as well as safeguarding the rights of other communities and the environment.
In essence, when a business utilises SLAPPs, the message they send is that profits and reputation are more valuable than social and environmental responsibility. Given the current state of the world - one bent on moving towards global justice and resolving the climate crisis - that is a message that cannot be endorsed.
SLAPPs occur in every region of the world, and although countries are starting to put in place reforms, there are many more reforms that need to take place (many of which are highlighted by the BHRC report). States, businesses and all individuals should work together to safeguard vulnerable communities and individuals, natural resources and rights to free speech to end the arbitrary usage of SLAPPs.