SLAPPs and FoAA rights

BY THE UNITED NATIONS SPECIAL RAPPORTEUR ON THE RIGHTS TO

FREEDOM OF PEACEFUL ASSEMBLY AND OF ASSOCIATION

Ms. ANNALISA CIAMPI

1. Premise

The term SLAPP - Strategic Lawsuit Against Public Participation - was first coined by
Professors George W. Pring and Penelope Canan in their 1996 book ‘SLAPPs: Getting Sued
for Speaking Out’. It generally refers to a civil lawsuit filed by a corporation against non-
government individuals or organizations (NGOs) on a substantive issue of some political
interest or social significance. SLAPPs aim to shut down critical speech by intimidating
critics into silence and draining their resources. In the process, they distract and deflect
discussions on corporate social responsibility, and – by masquerading as ordinary civil
lawsuits - convert matters of public interest into technical private law disputes.

Often based upon ambiguous and elastic provisions of law, SLAPPs use a range of tactics to
exhaust resources, campaign capacity and morale:
 They resort to motions, injunctions and other procedurally onerous processes
(particularly the expensive and resource-intensive discovery/disclosure process) to
impose heavy burdens on activists and civil society organizations;
 They often target individual campaigners, as well as the organizations they work for,
to maximize the SLAPP’s capacity to intimidate;
They generally include exorbitant claims for damages and allegations designed to smear,
harass and overwhelm the campaigners.
SLAPPs threaten advocacy activities and therefore undermine the ability of civil society
actors to effectively exercise their rights to freedom of expression, of assembly and of
association.

2. International SLAPP trend

SLAPPs have seen a significant increase worldwide, with certain legal frameworks proving
to be particularly fertile ground for the proliferation of this phenomenon.

How fertile the environment is for SLAPPs depends on a number of factors: e.g. how
expensive legal costs are (including any caps on damages and availability of legal aid), the
elasticity of laws targeting speech (especially defamation), and the absence of any safeguards
(e.g. anti-SLAPP statutes or discretionary cost awards against abuse of process).

While the problem of SLAPPs varies widely from country to country, a growing trend has
been recognized by international organizations around the world. For example:

In Canada, Ecojustice pointed to the ‘worrisome trend of SLAPP suits’ in a report detailing
the ‘urgent need for anti-SLAPP legislation in Ontario’. This trend was also recognized by
the Environment Commissioner of Ontario, an expert advisory panel of the Ontario

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government, and by various non-governmental organizations and municipalities across the
province.

In Ecuador, Earth Rights has described the SLAPP tactics used by Chevron against the
organizations, lawyers, journalists and activists who have campaigned about the company’s
destructive operations, as being ‘the most extreme’ example of a ‘rise in SLAPP … suits by
corporate defendants against the human rights attorneys and NGOs that have advocated
against them’.

In India, Amnesty International recognized an ‘increasing use of strategic civil defamation

lawsuits - a practice referred to in the United States as SLAPPs’ in its 2014 submission to the
Law Commission of India. In a report on how India's laws were used to suppress free speech,
Pen International noted SLAPPs had ‘devastating impacts’ on the rights of marginalized
people and that ‘socio-economic status is usually a decisive factor in their success’.

In the Philippines, Amnesty International has also recognized a growing use of SLAPPs
against NGOs and activists.

In South Africa, Otto Saki from the Ford Foundation recently noted that ‘the use of SLAPP
suits in South Africa is becoming a trend’, pointing to a recent SLAPP targeting individual
lawyers and activists from the Centre for Environmental Rights (CER).

The SLAPP trend has been particularly pronounced in the US, fueled and aided by exorbitant
legal fees, the “American rule” of costs apportionment (whereby each party to a lawsuit is
responsible for its own attorney fees), and an absence of caps on damages. In a recent report,
the free speech group Index on Censorship identified civil litigation as one of a number of
growing threats to US press freedom. The growth of anti-SLAPP statutes (now enacted in
twenty-eight US states, along with the District of Columbia and Guam) is largely attributable
to a growing recognition of this trend1. A worrying new approach has been the use of the
Racketeering Influenced and Corrupt Organizations Act (RICO) to intimidate advocacy
groups and activists by enabling corporations to smear these groups as “criminal enterprises”,
while claiming exorbitant damages (RICO entitles plaintiffs to claim treble damages as a
punitive measure) for the “harm” they claim to have suffered.

3. International legal standards

The rights to freedom of expression, of peaceful assembly and of association are fundamental
human rights, enshrined in Articles 19 and 20 of the Universal Declaration of Human Rights
and guaranteed under Articles 19, 21 and 22 of the International Covenant on Civil and

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Section 5 of the Illinois Citizen Participation Act, for example, notes ‘there has been a disturbing increase in
lawsuits termed "Strategic Lawsuits Against Public Participation”’(Illinois' Citizen Participation Act, 735 ILCS
110/1). A similar recognition can be found in California’s anti-SLAPP law: ‘The Legislature finds and declares
that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the
constitutional rights of freedom of speech and petition for the redress of grievances’ (California Code of Civil
Procedure, Section 425.16(a)).

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Political Rights (ICCPR). These rights can be subjected only to restrictions which are
prescribed by law and necessary in a democratic society in the interests of national security or
public safety, public order (ordre public), the protection of public health or morals or the
protection of the rights and freedoms of others.

Resolution 24/5 of the Human Rights Council stresses that:

“(…) respect for the rights to freedom of peaceful assembly and of association, in
relation to civil society, contributes to addressing and resolving challenges and issues
that are important to society, such as the environment, sustainable development, crime
prevention, human trafficking, empowering women, social justice, consumer protection
and the realization of all human rights”2.

It also reminds States of:

“their obligation to respect and fully protect the rights of all individuals to
assemble peacefully and associate freely […], and to take all necessary measures to
ensure that any restrictions on the free exercise of the rights to freedom of
peaceful assembly and of association are in accordance with their obligations
under international human rights law”.

The imperative of the obligations to respect and protect FoAA rights is underscored by the
“destruction of rights” provisions contained, inter alia, in Articles 30 of the Universal
Declaration of Human Rights and 5 of the ICCPR. According to the latter:

“Nothing in the present Covenant may be interpreted as implying for any State, group
or person any right to engage in any activity or perform any act aimed at the
destruction of any of the rights and freedoms recognized herein or at their limitation
to a greater extent than is provided for in the present Covenant.”

a) States’ obligations

States’ positive obligation to facilitate the exercise of the rights of freedom of expression,
peaceful assembly and association includes, among others, the duty to establish and maintain
an enabling environment for civil society to operate freely.3 Regarding the right to freedom of
association in particular, it is crucial that individuals exercising this right are able to operate
freely, without fear that they may be subjected to any threats, acts of intimidation or
violence4.

2
Human Rights Council, Resolution 24/5. The rights to freedom of peaceful assembly and of association, UN
Doc. A/HRC/RES/24/5, 8 October 2013, para. 2.
3
Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, UN Doc.
A/HRC/20/27, 21 May 2012.
4
Ibid, para. 63.

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The Committee on Economic, Social and Cultural Rights has elaborated States’ obligation to
protect individuals under their jurisdiction from interference by third parties in its General
Comment No. 24 (2017) on State obligations under the International Covenant on Economic,
Social and Cultural Rights in the context of Business Activities (2017):

“The obligation to protect entails a positive duty to adopt a legal framework requiring
business entities to exercise human rights due diligence in order to identify, prevent
and mitigate the risks of violations of Covenant rights, to avoid such rights being
abused, and to account for the negative impacts caused or contributed to by their
decisions and operations and those of entities they control on the enjoyment of
Covenant rights. States should adopt measures such as imposing due diligence
requirements to prevent abuses of Covenant rights in a business entity’s supply chain
and by subcontractors, suppliers, franchisees, or other business partners” (para. 16).

The General Comment further indicates that:

“The introduction by corporations of actions to discourage individuals or groups from

exercising remedies, for instance by alleging damage to a corporation’s reputation,
should not be abused to create a chilling effect on the legitimate exercise of such
remedies” (para. 44).

The UN Guiding Principles on Business and Human Rights5 stress that States should set out
clearly the expectation that all business enterprises domiciled in their territory and/or
jurisdiction respect human rights throughout their operations. Furthermore, in meeting their
duty to protect:

“States should enforce laws that are aimed at, or have the effect of, requiring business
enterprises to respect human rights, and periodically to assess the adequacy of such
laws and address any gaps”.

Thematic reports of special procedures mandate holders have further specified elements of
States obligations concerning the rights to freedom of expression, peaceful assembly and
association.

In a 2013 report, the Special Rapporteur on the situation of human rights defenders
notes:

“the consolidation of more sophisticated forms of silencing their voices and

impeding their work, including the application of legal and administrative
provisions or the misuse of the judicial system to criminalize and stigmatise their
activities. These patterns not only endanger the physical integrity and undermine

5
Guiding Principles on Business and Human Rights, UN Doc. A/HRC/7/31, 21 March 2011. The Guiding
Principles have been established as the authoritative global standards for all States and businesses with regard
to preventing and addressing the risk of business-related human rights impact.

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 the work of human rights defenders, but also impose a climate of fear and send an
intimidating message to society at large”6.

The State duty to protect and facilitate the exercise of the rights to freedom of peaceful
assembly and of association in the context of natural resource exploitation is also highlighted
in a 2015 report by the former Special Rapporteur on the rights to freedom of peaceful
assembly and association7. The report insists on the duty for States to, not exhaustively, enact
robust national laws that stipulate the rights and responsibilities of all, create independent and
effective enforcement, oversight and adjudicatory mechanisms, ensure effective remedies for
violations of rights and promote awareness of, and access to information about, relevant
policies and practices related to natural resource exploitation.

According to a joint report of 2016 by the former Special Rapporteur on the rights to freedom
of peaceful assembly and of association and the former Special Rapporteur on extrajudicial,
summary or arbitrary executions:

“Business entities commonly seek injunctions and other civil remedies against
assembly organizers and participants on the basis, for example, of anti-
harassment, trespass or defamation laws, sometimes referred to as strategic
lawsuits against public participation. States have an obligation to ensure due
process and to protect people from civil actions that lack merit”8.

Finally and more specifically, the Working Group on Business and Human Rights in its
Guidance on National Action Plans on Business and Human Rights recommended that States
enact anti-SLAPP legislation to ensure that human rights defenders are not subjected to civil
liability for their activities9.

b) Corporations’ obligations

The UN Guiding Principles on Business and Human Rights clearly outline that private actors
and business enterprises have a responsibility to respect human rights, which requires them to
avoid infringing on the human rights of others, to address adverse human rights impacts with
which they are involved but also carry out human rights due diligence. The responsibility to
respect human rights is a global standard of expected conduct for all business enterprises
wherever they operate10. Internationally recognized human rights are ‘understood, at a
minimum, as those expressed in the International Bill of Human Rights and the principles

6
Report of the Special Rapporteur on the situation of human rights defenders, UN Doc. A/HRC/25/55, 23
December 2013, para 59.
7
Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, UN Doc.
A/HRC/29/25, 28 April 2015, para 14.
8
Joint report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association and the
Special Rapporteur on extrajudicial, summary or arbitrary executions on the proper management of assemblies,
UN Doc. A/HRC/31/66, 4 February 2016, para. 84.
9
Guidance on National Action Plans on Business and Human Rights, United Nations Working Group on
Business and Human Rights, December 2014, p. 37, UNGP 25.
10
Guiding Principles on Business and Human Rights, UN Doc. A/HRC/7/31, 21 March 2011, Pillar II.

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concerning fundamental rights set out in the International Labour Organization’s Declaration
on Fundamental Principles and Rights at Work”11.

Corporations’ responsibilities exist independently of States’ abilities and/or willingness to

fulfil their human rights obligations, and do not diminish those obligations.

Moreover, under the horizontal dimension of human rights, all private parties, including
corporations, have an international obligation not to abuse their rights for the purposes of
constraining the rights of others (in accordance with the so-called “destruction of rights”
provisions referred to above).

It is a well established principle of international law that the characterization of an act as

internationally wrongful is governed by international law. Such characterization is not
affected by the characterization of the same act as lawful by internal law.12 The obligations of
corporations under international law, therefore, prevail over all national laws and regulations,
including those protecting human rights.

4. Recommendations

a) States should protect and facilitate the rights to freedom of expression, assembly
and association to ensure that these rights are enjoyed by everyone by, inter alia,
enacting anti-SLAPPs legislation, allowing an early dismissal (with an award of
costs) of such suits and the use of measures to penalize abuse.
b) All State actors - legislative, judiciary, executive, regulatory – at any level should
work towards facilitating an environment where criticism is part of a healthy
debate on any issues of public or societal relevance.
c) Private companies should refrain from the use of civil lawsuits as a means of
shutting down public participation and critical advocacy.

Annalisa Ciampi is the United Nations Special Rapporteur on the rights to freedom peaceful
assembly and of association. Mrs. Ciampi started her functions on May 1st, 2017. Ms. Ciampi
is a Professor of International Law at the University of Verona in Italy and a Visiting
Professor of European Human Rights Law at the Monash University Prato Centre. She is also
an Attorney at Law and a member of the Italian Bars of Florence and of the Court of
Cassation.

A Special Rapporteur is an independent expert appointed by the Human Rights Council to

examine and report back on a specific human rights theme or country situation. This position
is honorary and the expert is not a United Nations staff member, nor paid for his/her work.
The Special Rapporteurs are part of the Special Procedures of the Human Rights Council.

11
Guiding Principles on Business and Human Rights, UN Doc. A/HRC/7/31, 21 March 2011, Guiding Principle
12.
12
Vienna Convention on the law of treaties, 1969 (Art. 27); Draft Articles on Responsibilities of Sates for
Internationally Wrongful Acts, 2001 (Art. 3).

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In October 2010, the Human Rights Council adopted resolution 15/21 establishing the
mandate of the Special Rapporteur on the rights to freedom of peaceful assembly and of
association for an initial period of three years. The Council extended the mandate of the
Special Rapporteur for an additional period of three years in September 2013 (resolution
24/5) and June 2016 (resolution 32/32).