Undue influence of economic actors on judicial systems

Submission to the United Nations Special Rapporteur on Independence of Judges and Lawyers for her upcoming report to be presented at the 79th session of the General Assembly
June 2024

 

I. Introduction

The International Commission of Jurists (ICJ) thanks the Special Rapporteur for this opportunity to provide input on her forthcoming report at the 79th session of the General Assembly in October 2024 regarding the undue influence of economic actors on judicial systems.

In this submission, the ICJ limits its comments to a single aspect of this phenomenon, the use of Strategic Lawsuits Against Public Participation (SLAPP) by certain private actors, with illustrative examples from three countries. In particular, the submission highlights: a) the use of SLAPPs to undermine the role of human rights defenders, lawyers and journalists and the consequential narrowing of civic space in those countries; b) the role of the judiciary in protecting these persons against harassment by companies, and the failure of States to provide for adequate safeguards in law to address this undue use of the justice system; and c) some recommendations that could be addressed by the Special Rapporteur in her report.

II. Countries of focus 

a) India

The ICJ calls attention to the continuing use of SLAPP suits in India, particularly those filed by large business enterprises against media entities who perform essential journalistic functions, for example by reporting on alleged corruption and other potential official misconduct.[1] Some of these actions have been filed by political leaders against journalists and media outlets,[2] and against women who speak out regarding facing sexual harassment allegedly by a named person.[3] Typically, the issues raised by the defendant impact the rights of persons from the most marginalized communities.

These SLAPP suits are typically filed as civil actions for defamation, damages and injunctions on publication, and in some cases criminal defamation suits are filed. Journalists, activists and targeted women are burdened with having to defend themselves in court and the costs related to this defense.

SLAPP suits are often deployed with the intention of silencing disfavoured public expression, including by critics of government authority and other powerful actors.  Some of these cases have been well documented over the past decade, including by PEN International,[4] Human Rights Watch,[5] and the International Centre for Not-for-Profit Law in 2020.[6] These reports point out how SLAPP suits are often initiated for the sole purpose of intimidating under-resourced defendants into silence, and socioeconomic status is often the decisive factor in a SLAPP suit’s success because its aim is to inflict prohibitive legal fees on the weaker party.

In March 2024, the Supreme Court provided a warning about the use of SLAPP suits by powerful economic entities against the media or civil society, to prevent the public from knowing about or participating in important affairs in public interest:

“[t]he term ‘SLAPP’ …. is an umbrella term used to refer to litigation predominantly initiated by entities that wield immense economic power against members of the media or civil society, to prevent the public from knowing about or participating in important affairs in the public interest. We must be cognizant of the realities of prolonged trials. The grant of an interim injunction, before the trial commences, often acts as a ‘death sentence’ to the material sought to be published, well before the allegations have been proven. While granting ad-interim injunctions in defamation suits, the potential of using prolonged litigation to prevent free speech and public participation must also be kept in mind by courts.”[7]

Considering this context, the ICJ is concerned about the lack of statutory provisions addressing SLAPP suits[8] and their effect on freedom of expression and the right to information, especially about matters of public interest. Despite instances of judicial recognition and shielding against SLAPP suits, their continued use warrants a revision of defamation laws, including a repeal of criminal defamation laws as recommended by the UN Human Rights Committee[9] and the grant of pre-trial injunction on publication. Examples include suits filed by the Tata group against Greenpeace;[10] suit filed by a former Judge of the Supreme Court against an intern who said she was sexually harassed by him;[11] multiple suits against journalists and media houses by Adani corporation[12] and Reliance corporation;[13] suit by Jay Shah, the son of home minister Amit Shah;[14] suit by Shaurya Doval, son of the National Security Advisor;[15] and suits filed by political leaders who are members of or known to be close to the ruling BJP party.[16]

b) South Africa

Two landmark judgments[17] handed down by the South African Constitutional Court in November 2022 recognize SLAPP as an abuse of process and carve out a limitation to the capacity of certain company to claim damages for reputational harm. As described below, the Constitutional Court heard two appeals, one by the mining company, and one by the defendants, against a 2021 judgment handed down by the Western Cape High Court in favour of the defendants.

In her high court judgment,[18] Judge Patricia Goliath described SLAPP suits as constituting the “weaponization” of the legal system and cautioned against the abuse of power and resources which characterize SLAPP suits. The judgments arose from a series of defamation claims lodged by ASX-listed Australian mining company Minerals Commodities Limited (MRC) and its South African subsidiary, Mineral Sands Resources (MSR), against six human rights defenders and public interest lawyers in South Africa. The claims, which amounted to over R14.5 million (about USD 740 000), were filed against the defendants for their public criticism of MRC and MSR’s alleged conduct relating to their operations in South Africa. Two of the lawyers sued by MSR were employed by an NGO, the Centre for Environmental Rights, that had been challenging the environmental compliance of and approvals from one of MSR’s mines when the SLAPP suits were launched.

The Constitutional Court in the first judgment[19] recognized SLAPP as an abuse of process. By holding that the doctrine of abuse of process can accommodate the SLAPP suit defence, the Constitutional Court provided new and significant protections to human rights defenders, civil society actors whose work in the public interest has been so central to advancing human rights and fundamental freedoms in South Africa. In the second judgment,[20] the Constitutional Court held that companies alleged to suffer harm to their reputation as a result of defamation may not claim compensation for non-financial losses if the defamatory speech forms part of “public discourse on issues of legitimate public interest”. This is because awarding such damages would constitute an unjustifiable limitation on the right to freedom of expression. The judgments have important consequences for the protection of freedom of expression, but also for the work of human rights defenders and others addressing matters of public interest in the face of pressure and hostile action from business enterprises. The judgments also illustrate the critical importance of a judiciary that acts independently in the face of corporate pressure.

c) Thailand

In Thailand, both criminal prosecutions and civil lawsuits have been initiated by economic actors against human rights defenders, local villagers, journalists, and even government officials[21] who aim to shed light on human rights abuses and other alleged misconduct. Measures imposed by the Thai authorities and the Thai judiciary to address this persistent trend are still inadequate and ineffective.

UNDP has recorded that from 1997 to June 2022, there were a total of 109 SLAPP cases in Thailand, against over 400 individuals, filed by the business sector and State-owned enterprises. The targets included villagers, NGO activists, academics, and trade unionists. Charges include criminal defamation under sections 326 to 328 of the Criminal Code or the criminalization of “putting into a computer system distorted or forged computer data” under section 14 of the Computer-related Crimes Act B.E. 2560 (2017).[22] Among these, more than 10 cases were brought by individual corporations against groups of individuals with over 10 targets.[23]

For example, between 2013 and 2019, a Thai poultry company resorted to SLAPP lawsuits to silence at least 23 individuals, in 39 cases, who spoke out, including through online platforms, against their alleged exploitative labour practices.[24] While all the cases were dismissed by the courts after years of witness examinations, the plaintiff continues to appeal the judgments, and some cases remain pending in Thai courts, including those brought against human rights defenders[25] and the former National Human Rights Commissioner of Thailand.[26]

To address such concerns, Thailand’s Office of the Court of Justice proposed a bill to the then National Legislative Assembly, which it subsequently enacted, to protect against legal harassment. The bill aimed to amend the Criminal Procedure Code with the addition of articles 161/1 and 165/2 in 2019.

Article 161/1 allows the court to dismiss a case and forbids re-filing a complaint if it appears to the court that a private complainant has “filed the lawsuit in bad faith or distorted facts in order to harass or take undue advantage of a defendant, or to procure any advantage to which the complainant is not rightfully entitled.”

Article 165/2 protects the right to access to justice by allowing defendants during the preliminary hearing to submit and test evidence to demonstrate that the case “lacks merit.” This is done through submitting to the court “a significant fact or law,” including “evidence, persons, or materials.” Thereafter, the court “may call such persons, documents, or materials to provide evidence in its deliberation of the case as necessary and appropriate, and the complainant and the defendant may examine this evidence with the consent of the court.”

Despite the enactment of these provisions, the ICJ has observed that legal harassment against human rights defenders and others has continued over the past years, including cases brought by economic actors, indicating that these provisions may be inadequate on their face or inadequately implemented.[27] This observation has also been corroborated by other human rights organizations.[28]

It is important to note that the substantive content of articles 161/1 and 165/2 cannot fully and adequately prevent SLAPP lawsuits. The ICJ previously set out its concerns on articles 161/1 and 165/2.[29] They can be summarized as follows:

In respect of Article 161/1, this provision:

  • fails to articulate a definition for “bad faith” or to explicitly protect the free exercise of human rights and fundamental freedoms;
  • allows a case to be adjudicated entirely at judicial discretion, as the court may do this suo moto;
  • is limited only to private criminal complainants, not civil complaints or public prosecutions; [30]
  • does not expressly guarantee the right to appeal or judicial review; and
  • may curtail an individual’s rights to access to justice and to a fair trial as it prohibits complainants who are determined to have intentionally, and without appropriate reason, violated a final court’s orders or judgments in another case from filing a lawsuit.

Similarly, article 165/2 is limited in its scope because it only covers criminal cases filed by a private complainant. It does not cover civil cases or criminal cases that may be filed by a State investigator, as both types of cases do not guarantee a preliminary hearing stage.

The ICJ has no knowledge of either section being applied to date to dismiss SLAPP cases, even in the limited number of cases in which the articles could be used. Out of all the cases the ICJ monitored,[31] after article 161/1 was submitted to the court by defence lawyers, the courts have responded to these applications in various ways, such as (i) not considering the request at all, (ii) merely acknowledging receipt of the request without referring to it again, (iii) looking into the requests but deciding not to dismiss, and (iv) treating the request as a ‘statement,’ not as a ‘petition,’ while verbally explaining to the lawyer that section 161/1 does not allow lawyers to submit the request; it has to be initiated by the judge.[32]

3) Recommendations

The ICJ stresses that it is critically important for States to take effective measures, including through the adoption of legislation and administrative regulations, that serve to prevent the use of SLAPP by private actors, particularly as a means of obstructing the work of human rights defenders, journalists and independent lawyers. The justice system must not be instrumentalized to chill the work of such persons. The ICJ considers that such measures should be undertaken in order to abolish or severely curtail SLAPP suits so as to protect the right to information about matters of public interest, and to ensure accountability for the malicious use of the judicial system from those bringing SLAPP suits. In addition, States should review the criminal legal framework used in SLAPP suits, particularly against human rights defenders and others conducting public interest work, to protect such persons from malicious criminal complaints. The ICJ recalls that criminal defamation laws are generally incompatible with State obligations regarding freedom of expression and information, including as protected under article 19 of the International Covenant on Civil and Political rights. Judiciaries also play a fundamental role in limiting the impact of SLAPP suits, and in many jurisdictions they may affirm SLAPP suits as an abuse of process and adapt their jurisprudence accordingly.

[1] Aditya AK and Meera Emmanuel,” How Indian courts have ruled on Press Freedom over the past year” in Bar and Bench, 3 May 2019.

[2] Mohd Afeef, “Politicians Are Making Use of a New Trend of SLAPP Suits” in The Wire, 12 April 2023

[3] Alasdair Pal and Aditya Kalra, “Defamation suits aimed at India’s #MeToo complainants could stall movement” in Reuters, 17 October 2018.

“MJ Akbar: India ex-minister loses #MeToo defamation case to Priya Ramani”, in BBC, 17 February 2021

Indrani Basu, “Rajendra Pachauri files suit against Vrinda Grover seeking 1 crore in damages” in  Huffpost.com, 8 April 2016.

[4] Imposing Silence: The use of India’s Laws to Suppress Free Speech, PEN Canada, PEN International, and the International Human Rights Program (IHRP) at the University of Toronto, 2015.

[5] Stifling Dissent: The Criminalization of Peaceful Expression in India, Human Rights Watch, 2016.

[6] Protecting Activists from Abusive Litigation: SLAPPS in the global south and how to respond, International Centre for Not-for-Profit Law, July 2020.

[7] Order dated 22 March 2024, Supreme Court of India, Bloomberg Television Production Services India Private Limited and Ors v. Zee Entertainment Enterprises Limited, Para 10.

[8] There however exist occasional judicial recognition of SLAPP suits, including recently in March 2024.

Order dated 22 March 2024, Supreme Court of India, in Bloomberg Television Production Services India Private Limited and Ors v. Zee Entertainment Enterprises Limited, Para 10.

[9] Human Rights Committee, International Covenant on Civil and Political Rights, General Comment No. 34, Article 19: The Freedoms of opinion and expression, UN Doc. CCPR/C/GC/34, para 47

[10] Order of 28th January 2011, Delhi High Court,  Tata Sons v. Greenpeace International

[11] Order of 16th January 2016, Delhi High Court,  Swatenter Kumar v. Indian Express

[12] Adani Group, which is controlled by Gautam Adani, the fourth richest man in the world, has previously filed defamation suits against journalists including Bodhisatva Ganguli, Pavan Burugula, and Nehal Chaliawala of the Economic Times, Latha Venkatesh and Nimesh Shah of CNBC TV18, freelance journalist Paranjoy Guha Thakurta, news website Newsclick, and the news magazine Economic and Policy Weekly.

See Adani group files criminal defamation suit against Indian freelance journalist Ravi Nair,  Committee to Protect Journalist,  28th June 2022

[13] Aditya AK, “Debrief: Reliance Infrastructure’s 22,000 crore defamation juggernaut against the media in Bar and Bench, 25th October 2018

[14] Venkatesan R, “Jay Shah filed criminal defamation against the Wire” in Hindu Business Line, 8th January 2018.

[15] Ritika Jian, “Ajit Dovals son filed defamation suit against Caravan and Jairam Ramesh”, in The Print, 21st January 2019.

[16]Umang Poddar, “How gag orders by courts in defamation cases are stifling criticism against BJP leaders”, in Scroll.in, 8 October 2022.

[17] See https://www.saflii.org/za/cases/ZACC/2022/37.html and https://www.saflii.org/za/cases/ZACC/2022/38.html

[18] See https://www.saflii.org/za/cases/ZAWCHC/2021/22.html

[19] See https://www.saflii.org/za/cases/ZACC/2022/37.html

[20] See https://www.saflii.org/za/cases/ZACC/2022/38.html

[21] Bangkok Post, ‘Concerns raised over anti-govt ‘Slapp’ suits’, 4 May 2024, available at: https://www.bangkokpost.com/thailand/general/2786685/concerns-raised-over-anti-govt-slapp-suits

[22] For detailed analysis of the law, see ICJ, ‘Dictating the Internet: Curtailing Free Expression and Information Online in Thailand’, 2021, available at: https://www.icj.org/wp-content/uploads/2021/06/Thailand-Dictating-the-Internet-FoE-Publication-2021-ENG.pdf (‘ICJ 2021 Report’).

[23] UNDP, ‘Laws and Measures Addressing Strategic Lawsuits Against Public Participation (SLAPPs) in the Context of Business and Human Rights,’ June 2023, available at: https://www.undp.org/thailand/publications/laws-and-measures-addressing-strategic-lawsuits-against-public-participation-slapps-context-business-and-human-rights

[24] FIDH, ‘Thailand: Thammakaset Watch,’ 29 August 2023, available at: https://www.fidh.org/%E0%B9%84%E0%B8%97%E0%B8%A2/thailand-thammakaset-watch

[25] For example, the cases brought against human rights defenders Nan Win and Sutharee Wannasiri, in which the company is taking the case to the Supreme Court. For more information about this case and the analysis of Thailand’s criminal defamation law, which is incompatible with Thailand’s international legal obligations relating to the right to freedom of expression, see: ICJ, ‘Thailand: ICJ and LRWC submit amicus in criminal defamation proceedings against human rights defenders Nan Win and Sutharee Wannasiri,’ 25 January 2019, available at: https://www.icj.org/thailand-icj-and-lrwc-submit-amicus-in-criminal-defamation-proceedings-against-human-rights-defenders-nan-win-and-sutharee-wannasiri/

[26] Despite being found not guilty by the first instance court, the case against former National Human Rights Commissioner Angkhana Neelapaijit, along with two other human rights defenders, Puttanee Kangkun and Thanaporn Saleelphol, is currently pending before the Appeal Court. For more information, see ICJ, ‘Thailand: ICJ condemns the use of criminal defamation law to harass Angkhana Neelapaijit,’ 27 November 2019, available at: https://www.icj.org/thailand-icj-condemns-the-use-of-criminal-defamation-law-to-harass-angkhana-neelapaijit/; BBC, ‘Thammakaset: Thai poultry farmer loses his 36th defamation suit,’ 29 August 2023, available at: https://www.bbc.com/news/world-asia-66643591

[27] For example, in at least five criminal cases monitored by the ICJ brought by a poultry company against academics, activists, NGO representatives, and a former member of the National Human Rights Commission of Thailand, as well as a case brought by a food processing company against a journalist, and a pet food company against a conservation scientist.

[28] For example, Protection International, ‘Combatting SLAPP Attacks in Thailand: How Protection International is making a difference,’ 30 August 2023, available at: https://www.protectioninternational.org/news/slapp-attacks-in-thailand/

[29] See ICJ Report, ‘Dictating the Internet: Curtailing Free Expression and Information Online in Thailand’, 2021, available at: https://www.icj.org/wp-content/uploads/2021/06/Thailand-Dictating-the-Internet-FoE-Publication-2021-ENG.pdf, at 45-50; see also ICJ and Human Rights Lawyers Association, ‘Recommendations on draft National Action Plan on Business and Human Rights’, 14 February 2019, available at: https://www.icj.org/wp-content/uploads/2019/03/Thailand-SLAPP-Analysis-Advocacy-Analysis-brief-2019-ENG.pdf

[30] Under Thai law, injured persons may file a criminal case to the investigator (public prosecution) or directly file a criminal case in a court (private prosecution).

[31] See supra note 27.

[32] See ICJ Report, ‘Dictating the Internet: Curtailing Free Expression and Information Online in Thailand’, 2021, available at: https://www.icj.org/wp-content/uploads/2021/06/Thailand-Dictating-the-Internet-FoE-Publication-2021-ENG.pdf

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