Slapped into Silence
Malicious lawsuits remain the favourite tool of the powerful to intimidate activists and journalists across Asia.
Freedom of expression, association and peaceful assembly are fundamental human rights. They are crucial in any country that truly values public participation in development and decision-making.
However, these basic rights are under siege in many countries in Asia and beyond. The attacks take many forms — from home visits to physical assaults, military or police suppression, online disinformation, false accusations, enforced disappearance and even murder.
Equally troubling is the tendency of powerful individuals and entities to use civil and criminal laws, especially libel and defamation, to intimidate critics, journalists and others who bring contentious issues to public attention. This practice has come to be known as Slapp, or “strategic lawsuits against public participation”.
The Business & Human Rights Resource Centre (BHRRC) defines a Slapp as a lawsuit filed or initiated with the intent to intimidate and harass those engaged in acts of public participation, including criticism or opposition to certain activities. It documents the extent of the problem in a report entitled “Defending Defenders: Challenging Malicious Lawsuits in Southeast Asia”.
Governments in Southeast Asia, most of which have a strong authoritarian streak to begin with, have been using the pandemic as an excuse to further censor free speech. For example, Cambodian authorities have jailed three journalists for reporting about land disputes, a speech by Prime Minister Hun Sen and his response to economic hardship caused by Covid-19. They were charged under a vaguely worded law against “incitement”.
Another case that has attracted international attention involves Maria Ressa, who founded the Philippine news site Rappler. The website has often put President Rodrigo Duterte under tough scrutiny, and Ms Ressa, a former CNN correspondent, was convicted last month of libel and faces up to six years in jail.
In Malaysia, some journalists reporting on Covid19 have been arrested and could face up to six years in prison and fines of up to 500,000 ringgit. The government is also investigating a team from Al Jazeera over their reporting on the treatment of undocumented workers under the Covid lockdown. They could face charges of sedition, defamation and violation of the Communications and Multimedia Act.
Meanwhile, a Malaysian court is hearing a case against the popular news portal Malaysiakini and its editor-in-chief over readers’ comments about the judiciary posted on its website
And under Thailand’s longer-than-it-should-be emergency decree, the Facebook whistleblower page Mam Pho Dam with 3 million followers, which exposed hoarding of face masks, was charged in March under the “anti-fake news” law.
Some companies have even been taking advantage of current restrictions to file more cases against critics, whose freedom to move about and communicate has been limited by lockdown orders.
However, the pandemic has also delayed many legal proceedings as courts have had to suspend some trials and hearings.
GETTING SLAPPED
Slapp is a global phenomenon. Between 2015 and July 2020, 42% of the 2,400 business-linked attacks against human rights defenders around the world were carried out via the judicial system. They involved civil and criminal lawsuits, arbitrary detention, arrests and unfair trials, according to the BHRRC.
Second only to Central America where 204 judicial harassment cases were documented, Southeast Asia had 167 such cases, or 48% of the total of 345 business-linked attacks.
The government needs to protect the civic space and fundamental freedoms for people to speak out on issues of concern STAFFAN HERRSTRÖM
Swedish ambassador to Thailand
According to a report by the Human Rights Lawyers Association (HRLA), from 1997 to May 2019 there were 212 Slapp cases in Thailand, 196 of which were criminal cases with potentially severe consequences including imprisonment.
“Slapp lawsuits actually are distracting and shift interest, attention and resources from structural and underlying problems,” said Sutharee Wannasiri, a Thai activist who spoke at a recent online forum organised by various UN organisations.
Malicious lawsuits also have a “chilling effect on freedom of expression”, she added, pointing out that many people including journalists are afraid to mention certain issues involving certain companies because “they might also be the next people facing persecution”.
Slapp lawsuits also impose burdens on the accused, especially in criminal cases because of the complexity and high legal costs of legal procedures. Companies often seek disproportionate remedies and severe sanctions by demanding high monetary damages.
They also exhaust financial resources of defendants by filing complaints in courts far from defendants’ homes, filing multiple cases related to a single incident, and appealing court decisions that do not go their way.
GAME OF CHICKEN
One case that stands out in Thailand involves the Lop Buri poultry farm Thammakaset Co Ltd, a supplier to the agribusiness giant Betagro. A complaint filed in 2016 with the National Human Rights Commission alleged that migrant workers at the farm were forced to work up to 20 hours a day, were paid less than the minimum wage and had their identity documents confiscated.
The Department of Labour Protection and Welfare in August 2016 ordered Thammakaset to pay the workers 1.7 million baht in compensation and damages, but the money was not handed over until 2019.
The retribution has been incessant. Thammakaset over the past four years has filed 39 criminal and civil complaints against 22 individuals including migrant workers, journalists, human rights defenders and one media company.
Ms Sutharee, who worked on the Thammakaset case with Fortify Rights, faced one civil suit in which she “was asked to pay 5 million baht for tweeting comments about the company on Twitter”.
A criminal defamation complaint against Ms Sutharee was later combined with one against Nan Win, who was charged in connection with an interview featured in a Fortify Rights campaign video. He was one of 14 migrant workers who initiated the abuse complaint “and has been facing reprisal and retaliation for the past four years”, she said.
However, on June 8 the Criminal Court found the two defendants not guilty and dismissed the cases. A defence lawyer said the court found that their public talks, interviews and online postings had presented information that was true and well documented, and therefore they were not responsible for any damage to Thammakaset.
It is not known yet whether Thammakaset will appeal but the record suggests the saga is far from over.
In December, a court in Lop Buri sentenced Suchanee Cloitre, then working for Voice TV, to two years in prison for criminal libel for a comment she tweeted about the grievances against the company. She is free on bail pending an appeal.
Her conviction stemmed from her use of the words “slave labour” in a report on the compensation order.
“I was shocked,” Ms Suchanee told local media at the time of the sentencing. “I think the verdict will have an effect on Thai media. They have to be much more careful when reporting any story.”
HALL OF FAME
One of the longest-running Slapp sagas in Thailand involves Andy Hall, a British migrant workers’ advocate. His ordeal began when he interviewed migrant workers at the Hua Hin-based pineapple processor Natural Fruit Co Ltd for a report titled “Cheap Has a High Price”, published by the advocacy group Finnwatch in 2013.
Natural Fruit has filed four criminal and civil cases against Mr Hall since the publication of the report.
He was convicted of criminal defamation in 2016 and sentenced to four years in prison. The Court of Appeal in May 2018 overturned the ruling, saying that based on all the evidence, there was a real possibility of abuse at the company, which made it a matter of public interest.
On June 30 this year, the Supreme Court upheld the appeal ruling. The top court on July 14 was scheduled to rule on Mr Hall’s appeal against a 10-million-baht civil defamation conviction in 2018 but the hearing was postponed.
Meanwhile, the Nakhon Pathom Civil Court last week accepted a new 300-million-baht civil defamation complaint brought by Natural Fruit against Mr Hall, based on the same facts cited in the criminal case the Supreme Court has just overturned.
Mr Hall left Thailand in 2016, saying he would not return unless judicial harassment against him ceases. Now based in Kathmandu, he continues to work on migrant workers’ rights issues.
Southeast Asia is also one of the most deadly regions in the world for environmental human rights defenders, many of them from indigenous groups, says Cynthia Veliko, regional representative of the Office of the UN High Commissioner for Human Rights in Southeast Asia.
The complex human rights issues regarding land and the environment are “linked largely due to a growing quest for the exploitation of natural resources”, she added.
The threats and attacks are most frequently connected to mining projects, oil and gas developments, agribusiness, logging and deforestation, hydropower, and large-scale infrastructure projects.
Data from BHRRC showed that there were 104 attacks related to environmental issues in Southeast Asia including violence, death threats and killings, and 45 cases using the judicial system including Slapp cases.
SLAPP PREVENTION
“The purpose of anti-Slapps laws is to protect freedom of expression from judicial harassment,” says Sumitchai Hattasan, a human rights lawyer and director of Thailand-based Center for Protection and Revival of Local Community Rights.
However, in Southeast Asia only the Philippines has a definition of Slapps, in a law enacted in 2010. The Rule of Procedure of Environmental Cases, as it is known, is also limited to environmental cases. It allows the courts to dismiss a Slapp case in a summary hearing before proceeding to a lengthy and costly trial.
If a defendant claims the case is a Slapp, the plaintiff needs to provide evidence within five days that it is not, and after a summary hearing, the case will be resolved in 30 days.
When the case is dismissed, the defendants have the right to request compensation for damages, cost of litigation and other remedies.
An anti-Slapp law creates an increased burden on plaintiffs who want to pursue malicious prosecutions against people who exercise their freedoms, Mr Sumitchai added.
In 2019, Section 161/1 of Thailand’s Criminal Procedure Code was amended to protect the right to freedom of expression against Slapps. It allows a court to dismiss a case filed in “bad faith” or if it cites distorted facts in order to harass or take advantage of a defendant.
However, in Mr Sumitchai’s view, it is still not an anti-Slapp law because the term “bad faith” is too broad.
As well, he says: “There are no legitimate criteria for identifying Slapps so it is up to the discretion of the court.”
In any case, he said, the Thai government was obligated to pass anti-Slapp legislation as a part of its first National Action Plan on Business and Human Rights, which was adopted by the cabinet last year.
“There need to be some measures, platforms or mechanisms to force the business sector to include human rights in their business plans,” he said. For example, this could cover companies that want to list on the stock market or invest in the Eastern Economic Corridor (EEC).
“The government also needs to protect the civic space and fundamental freedoms for people to speak out on issues of concern, allow and encourage unions, consider decriminalisation of defamation and put in place strong protective measures for human rights defenders and others,” Staffan Herrström, the Swedish ambassador to Thailand, said at the forum.
ADDRESSING CONSENT
“The root causes (of the problem) stem from a complex pattern of business misconduct,” said Dr
Wora Sukraroek, Mekong campaign coordinator for business and human rights advocacy of EarthRights International. This can take the form of poor public participation, decisions taken in isolation from other factors, decisions behind closed doors, absence of responsibility and accountability, as well as the lack of compensation and responsibility to provide remedies.
The “Protect, Respect and Remedy” framework is part of the UN Guiding Principles on Businesses and Human Rights for both governments and businesses to prevent and address the adverse impacts and risks of globalisation and unchecked economic activity.
The principles require companies to carry out human rights due diligence to identify, prevent, mitigate and account for how they address impacts of their activities.
However, Ms Veliko points out that too often the impact assessments are conducted in a manner contrary to the spirit of due diligence and with the sole objective of pushing through a project.
“The deeply disconcerting statistics on violations against environmental human rights defenders in the region indicate that the principles are simply being disregarded,” she said.
She called on businesses to establish multi-stakeholder working groups to create a robust grievance mechanism based on engagement with communities and affected parties in order to address criticism.