The Topsy Turvy World of Strategic Lawsuits
Strategic, or “impact” litigation, typically involves bringing a case to a legal authority to effectuate a broader change in society. In the United States, for example, the famous 1954 Supreme Court case of Brown vs. Board of Education declared state laws establishing separate public schools along racial lines to be unconstitutional.
In South Africa, a campaign of strategic litigation helped lay the foundation for a rights-based approach to jurisprudence, demonstrating that the judiciary can positively interpret laws to address endemic issues in society and push governments to be more accountable to their citizens. Use of strategic litigation has proven to be an effective tool in strengthening the rule of law.
But what happens when strategic litigation is turned upside down? When it’s used by the powerful and well-connected, as a means to counter and undermine—not fortify—the rule of law? Unfortunately, the weaponization of lawsuits is a growing trend, trampling on fundamental rights and chilling freedom of expression in its wake. For the rule of law practitioner, this trend represents yet another challenge to overcome in the wake of growing authoritarianism and retrenchment of anti-democratic forces across the globe.
One form of this diabolical methodology is the use of Strategic Lawsuits Against Public Participation (SLAPPs), which undermine democratic debate by selectively targeting those who communicate or speak on issues of public interest – journalists, human rights defenders, and civil society organizations. Influential elites, sometimes even state actors or business entities, use defamation claims, labor laws, and privacy and data protection regulations to threaten parties into silence. These suits are intended to intimidate and immobilize proponents of these freedoms and often bankrupt them in the process. Sometimes this noxious use of the law is a prelude to something more deadly.
One of the more egregious examples was the death of Daphne Caruana Galizia, an investigative journalist in Malta who reported on corruption and organized crime and was killed by a car bomb outside her house in 2017. At the time of her death, Ms. Caruana Galizia had 42 civil libel suits open against her, most of them brought by Maltese politicians and their business associates.
While still relatively underdeveloped from a legal perspective, there is a growing recognition of the danger SLAPPs and other forms of nefarious litigation pose to the rule of law. Anti-SLAPP statutes now exist in 31 U.S. states and the District of Columbia. The EU Parliament recently approved a series of recommendations to counteract the use of SLAPPs after more than 60 organizations representing civil society, including the Association of European Journalists, advocated for the creation of ambitious legal protections.
In the US, EU, Canada and Australia, anti-SLAPP protections allow the defendant to bring a motion to strike prior to a costly discovery process, shifting the burden of proof to the plaintiff and allowing an opportunity for the case to be dismissed early in the process. Protections also impose restrictions on forum shopping and in some cases, impose penalties on the claimant. California has gone so far as to allow a “SLAPP Back” suit, a type of malicious prosecution claim whereby the defendant in the original suit can sue for damages.
Nevertheless, while these trends are encouraging, anti-SLAPP protections are still underdeveloped both in the U.S. and abroad. Those individuals and organizations that are on the “front lines” in battling corruption and demanding public accountability are exposed with legal harm and financial ruin. For example, in South Africa, SLAPPs present an emerging threat to public interest environmental litigation, a tool to ensure effective compliance with environmental laws that relies heavily on access to information and public participation in decision-making. In Thailand, human rights defenders and migrant workers who brought attention to labor rights violations at a commercial chicken farm face criminal and civil defamation charges. In Malaysia, Prime Minister Najib Razak was sentenced to 12 years in prison on corruption and money laundering charges but not before he filed a costly defamation case against the journalist who exposed his malfeasance.
As SLAPPs become a more prominent part of the legal landscape of many countries, local civil society organizations are slowly adapting to the threat of targeted litigation by developing funding proposals from international organizations and donors that can support effective defenses against the lawsuits. While a positive trend, it’s important that donor organizations and rule of law practitioners do more in the development space to combat the use of SLAPPs.
Too often the concentration on justice sector issues is limited by the notion that “access” – the ability to see a legal remedy in a court of law, is enough. Moreover, indicators of success in the rule of law discipline are often measured by whether the donor is building institutional efficiency, i.e., the “supply” side of the equation. However, the proliferation of SLAPP lawsuits demonstrates the need for more attention on the results for society at large – a “people centered justice” focus that puts outcomes, not institutions, at the heart of measuring progress. The ability of human rights defenders, journalists, and civil society actors to minimize or avoid harassing lawsuits in order to carry out the public good is critical to this outcome-oriented approach.
Tetra Tech MSI’s work in Mexico on the USAID Human Rights and Defenders’ and Journalists Protection Activity, locally known as POR LA PROTECCIÓN DE PERSONAS DEFENSORAS Y PERIODISTAS (PDP) is one example of the newfound recognition on the part of donors on the dangers of SLAPPs. MSI collaborates with local stakeholders such as Renace San Luis (@RenaceSanLuis/Twitter) and Article 19 (@article19org/Twitter @article19/LinkedIn) to counter false claims and unfounded allegations that “criminalize” journalists and environmental rights defenders through support to their legal assistance and representation teams.
As anti-democratic forces continue their relentless march against those that defend the public interest by checking state power and exposing endemic corruption by connected elites, donor organizations must do more to ensure that organizations and individuals have the tools and resources to defend themselves against SLAPPs.