Down to Earth | 27 February 2023
This is a machine-generated Google translation of an article in Dutch. Please see the original here.
"It's the bad apples that do this"
Berna van Vilsteren
Multinationals and wealthy individuals are increasingly bringing defamation lawsuits against whistleblowers. As long as national laws do not provide protection, even louder campaigning is the best defense. And that works. “Judges see that society needs activists.”
“Even if I sell my wife, myself, the kids and the house, I don't have $1.2 million.” Peter Kallang, chairman of the NGO SAVE Rivers, can still joke about it. His granddaughter crawls into her grandfather halfway through the Zoom conversation. Nevertheless, he says he does feel the continuing tension of the lawsuit brought by two subsidiaries of Samling Plywood, one of the major timber companies in Southeast Asia.
SAVE Rivers is a small NGO in the Malaysian part of Borneo. In April 2021, they receive a letter from a 'corporate' lawyer demanding the huge sum of money from Kallang and three fellow activists. The charge: spreading lies and libel. “We were stunned,” says colleague Celine Lim (not one of the defendants) in the same Zoom conversation. “We sat down with our legal team. It slowly dawned on us that we were dealing with a SLAPP.”
Disproportionate
SLAPP stands for Strategic Lawsuits Against Public Participation. The term was coined in 1996 by George Pring and Penelope Canan in the book SLAPPs: getting sued for speaking out . The scientists at the University of Denver thus gave a name to lawsuits that appear to be about reputational damage, but are in reality an attack on freedom of expression.
What happened to SAVE Rivers is a classic SLAPP. A large company or wealthy individual is confronted in the media with accusations of abuses, exposed by, for example, a social organization, journalist or activist. The accused party then hires a lawyer and strikes back with a charge of lies and slander. The victim can recognize a SLAPP from afar by the nature of the accusations: they often go off without a hitch. Claims for the reputational damage suffered are disproportionate. In 2010, for example, Tata Steel demanded $2.2 million from Greenpeace India for a satirical Pac-Man-style turtle game. The game would infringe trademark law and tarnish the honor of a Tata Steel tycoon.
Complaint procedure
The case of the Samling Plywood daughters against SAVE Rivers is reminiscent of Kafka. In 2018, the NGO comes to the aid of indigenous populations in Baram. In Baram, located in the 'Heart of Borneo', live the Kenyah, Penan and Saban. The rainforest is still partly untouched. Kallang: “One day people saw that employees of the company were marking the area. When they asked what was going on, it turned out that they wanted to cut down an area of almost 150,000 hectares.” Samling Plywood is affiliated with FSC, the international sustainability label for wood products. To do this, the original population must be involved in logging plans in their area, Kallang explains. “But nobody had been consulted at all. The people didn't even know they were going to lose their land. At a meeting at a hotel, representatives of the timber company stated that they had spoken with the village chief. “But the village chief is appointed by the government and receives bonuses from companies operating in the area. There's a conflict of interest there. No questions from us were answered at all. They left with a silent drum.”
When SAVE Rivers subsequently submits an official complaint to the Malaysian Timber Certification Council (MTCC), it is therefore not aware of any harm. Lim: “We were convinced that we were doing our work well as a social organization. We were led to believe that the certification process would be a matter for all parties involved.” When SAVE Rivers starts publishing about the abuses, the timber company sends a lawyer to the organization. He summons them to remove press releases and articles from their website. “We refused,” says Kallang. “We had done proper research and our facts are correct.” The Samling daughters then respond with the legal heavy artillery of a SLAPP.
Lim hadn't expected that. “Why set up a grievance procedure if a company can use it against you for defamation?” The consequence of the SLAPP is that nothing will be done with the complaint for the time being. Certification body MTCC has detained it, as long as the court does not rule. “And all the while, the people of Baram live in uncertainty,” says Kallang.
One of the first defamation lawsuits against environmentalists was against Helen Steel and David Morris. In 1986, the pair handed out leaflets in London containing a cigar smoking figure in a fedora hides behind a Ronald McDonald mask. The satirical pamphlet entitled 'What's wrong with McDonalds?' contains puns like McDollars, McGreedy and McMurder. McDonalds successfully sues the pair, which she associates with London Greenpeace. A British court ordered them to pay £44,000 in libel. Steel and Morris are appealing to the European Court of Human Rights. That degenerates into a complex process with 313 court days, more than a hundred witnesses and numerous experts. The court concludes that “a greater inequality in the defense is not conceivable”; a part-time bartender and a single parent with no income face off against a multi-billionaire fast food chain. The court finds that the British court has violated important human rights - the right to access to a fair trial and freedom of expression - and emphasizes the possible "deterrent effect" of the ruling. The case law of Steel Morris v United Kingdom continues to be cited by lawyers representing SLAPP victims.
It's not about injustice
SLAPPs are increasingly used worldwide against whistleblowers. The number of SLAPPs has also skyrocketed in Europe, with the Coalition Against SLAPPs in Europe (CASE) counting a record number of 114 in 2020. In CASE, about forty interest groups – in the fields of media, civil rights, environment – are united against SLAPPs. The reason for this joining of forces was the assassination attempt on the Maltese journalist Daphne Caruana Galizia. She was subject to dozens of SLAPPs, by elite and business people about whom she exposed financial and political scandals. The murder of Caruana Galizia has been condemned across Europe, but has not discouraged the complainants. The SLAPPs continue to run against her husband and son.
A libel case is therefore not about right and wrong at all, explains Daniel Simons in a Zoom conversation from Copenhagen. He is a lawyer and legal adviser for Greenpeace International and involved in CASE. “They are deliberate attempts to silence and financially drain whistleblowers with lengthy lawsuits. The complaining party is often not even interested in winning.” It is little consolation that SLAPPs are rarely successful. The deterrent effect of this is now a real problem, thinks Simons: “I am consulted a lot by small organisations. The fear runs deep and people are very careful about writing things down. There is nothing wrong with that in itself, but it should not go so far that people weaken things or do not publish.”
Simons has little insight into this. NGOs or journalists wisely do not flaunt it. But it does happen. The French NGO SHERPA previously bowed under the pressure of a SLAPP by Socfin. This agro-industrial multinational owns 400,000 hectares of palm oil and rubber plantations in Africa and Asia. It has been repeatedly accused of a long list of wrongdoings, including land grabbing. SHERPA has softened this in its publications to 'large-scale acquisition of land'.
Time consuming
Whoever publishes about Socfin must have a firm footing. Socfin and the Belgian businessman Hubert Fabri and the French Vincent Bolloré, the largest shareholders, have already filed about thirty defamation proceedings. In addition to NGOs, journalists and media organizations are also targeted, largely in Europe. In 2019, Socfin sends their lawyers to five NGOs in Belgium and Luxembourg for defamation, insults and violation of privacy. Seven campaigners are personally charged. They also face criminal charges.
“By aiming broadly, they cause maximum damage,” says Florence Kroff of FIAN Belgium (Food First and Action Network). This small human rights organization and Kroff personally are both in the dock. “It takes more time to coordinate and react. It is more complicated for the lawyers to prepare a defense. All in all, hundreds of hours and 15 thousand euros in costs are involved.” She cannot devote all those hours to her work. That is the biggest impact of a SLAPP, thinks Kroff. The case also depresses psychologically, she says. “You never know when things will move forward and if you are going to win. Almost nothing has happened for 3 years now. All the while, the sword of Damocles hangs over your head. For activists and journalists in countries where Socfin has its plantations, like Sierra Leone, it is much more dangerous, the justice system is much weaker.”
Closer to home, Socfin is also proverbially looking over the shoulder of campaigners. “Because we know the reputation of this company, it also influences our way of working,” says Danielle van Oijen. She has published several critical reports on Socfin with various partner groups for Milieudefensie. “For large reports, we have everything legally checked; where are the risks and ambiguities? That entails higher costs.”
Increasing trend
Multinationals and high net worth individuals worldwide are increasingly deploying SLAPPs against whistleblowers. The UN counted 355 SLAPPs from the business community between 2015 and 2022. Individuals and organizations that expose human rights violations, abuses in mining, agriculture and forestry and on palm oil plantations are most often affected. In more than half of the cases, the allegations are of a criminal nature. Libel cases are especially dangerous for defenders of environmental and human rights in countries with a weak legal system, in Latin America for example. In Europe, too, the number of SLAPPs from businesses and private individuals has skyrocketed. Coalition Against SLAPPs in Europe (CASE) has counted 570 defamation cases over the past 12 years, with a record 114 in 2020.
Protection
Legal protection to discourage defamation cases is urgently needed, thinks Kroff. These anti-SLAPP laws already exist in Canada and the US. In addition, the SLAPP Protection Act 2022 came into force in 32 states in the US at the end of last year. This allows judges to halt cases early if they appear to be in conflict with freedom of expression. It also offers judges scope to recover legal costs from the complaining party.
There is also a growing awareness at European level that the public interest deserves more protection against parties with deep pockets. Last year, the Council of Europe put together an expert group that will make recommendations on how member countries can shape this protection. The European Commission is also preparing a directive that obliges member states to include anti-SLAPP laws in their national legislation. The position of the Netherlands is striking. “The Ministry of Foreign Affairs does not seem to see SLAPPs as a major problem,” says Simons. In addition, there is skepticism about the main weapon against SLAPPs: the early closure of a case when it is unfounded. “The 'lacking' party could then start legal proceedings against this, which would further increase the costs for the victims. But victims only enter such a procedure if they are sure that it can dispose of the case early. In the US, this mechanism appears to be a 'live saver',” says Simons.
The Dutch restraint is not without danger, he emphasizes. If the Netherlands does not adopt the European directive, parties that are faced with a SLAPP from abroad in the Netherlands will also not be protected. For example, Energy Transfer Partners, the company behind the Dakota Access Pipeline, has demanded USD 900 million against Greenpeace International in the US. “If we lose that case there and there is no national legislation here, the company can seek redress in the Netherlands.”
In the counterattack
As long as there are no proper anti-SLAP laws, offense seems to be the best defense. SAVE Rivers started two public actions linked to petitions under the name 'Stop the SLAPP' and 'Stop the Chop'. About a hundred NGOs joined this initiative. With success: Samling Plywood has partially withdrawn from Baram. Public awareness helps, says SAVE Rivers lawyer Theiva Lingam. “As defamation cases are on the rise, discussions are taking place at all levels of the judiciary,” she says via a Skype connection with Kuala Lumpur. “There is a growing awareness that these kinds of cases against whistleblowers can lead to harassment. Judges see that society needs activists. There has also been consultation with the Human Rights Commission in Malaysia. They now have a better picture of the industries that engage in these practices. The balance will not, as in the past, automatically tip towards the importance of reputation protection.”
Solidarity is also important. Kroff: “If you campaign, demonstrate or publish a press release together with other organisations, you make it more difficult for companies to single out one organisation. Fortunately, with a view to SLAPPs, we had taken out legal assistance insurance that the other defendants could benefit from.” Simons also advises to accelerate correctly. “Our philosophy is not to be intimidated. You have to show that a SLAPP does not pay off, that the prosecutor can then expect more negative publicity.”Van Oijen of Milieudefensie thinks SLAPPs are “terribly scary”, but also sees that the knife cuts both ways. “Judges are almost irritated when Socfin comes up with a SLAPP again.” Another reason for the Netherlands to embrace the European directive, says Simons. “Our justice system is already overloaded on all sides.” The network around large companies is closing, says Van Oijen. “We have legislation in Europe that takes a firmer approach to deforestation and human rights violations in the production chain, and the noncommittal nature of corporate social responsibility is also disappearing. The reasonable companies are moving along with this and will not suddenly resort to SLAPPs. It really is the bad apples that do this.”
