Resisting SLAPPs: Challenging corporations who weaponise the law

To state that law is meant to serve the interests of justice may seem idealistic, and indeed, for some corporations the reverse is true – the law is a vehicle through which they can silence their critics, and stifle legitimate opposition to their operations. This phenomenon is known as ‘SLAPPing’ (an acronym for ‘Strategic Lawsuit Against Public Participation’).

What are SLAPPs?

Coined by two US academics, Pring and Canan, in the 1980s, the term typically (although not exclusively, or exhaustively) denotes litigation which:

• Targets free speech
• Intends to exhaust, financially or otherwise, the defendants
• Seeks to intimidate civil society actors and dissuade in/direct action against the party bringing the SLAPP
• Is deployed as part of a wider PR strategy to bully critics; and
• Is (often) meritless, or at least out of proportion to the alleged harm

Over the years, journalists, lawyers, communities, and activists have all found themselves at the receiving end of SLAPPs. Notoriously, the Maltese investigative journalist Daphne Caruana Galizia was the focus of 42 suits at the time of her assassination. Many have argued that Chevron’s ongoing campaign of harassment against American lawyer Steven Donziger is also a SLAPP.

Mineral Sands Resources v Reddell

However, as the 2021 judgment in the South African case of Mineral Sands Resources (‘MSR’) shows, SLAPPs can not only be defeated in court – they can recognised as the intimidatory weapons they are, and novel legal defences can be devised to protect against them.

The case was issued following comments made by environmental lawyers Christine Reddell and Tracey Davies, and activist Davine Cloete (amongst others), during a 2017 lecture at the University of Cape Town. Their discussion about the devastating environmental impact of MSR’s mining operations was, the company alleged, defamatory. In total, MSR sought damages of R3,000,000 (approximately £150,000).

In her landmark decision, Deputy Judge President Goliath set out the history of SLAPPing (from [39] onwards), identified their signature elements, and accepted a special defence to defamation claims, namely that SLAPPs violate the constitutional right to freedom of expression and are vexatious. She concluded:

• [66] The improper use and abuse of the judicial process interferes with due administration of justice and undermines fundamental notions of justice and the integrity of our judicial process. SLAPP suits constitute an abuse of process and is inconsistent with our constitutional values and scheme.
• Whilst such legal precedent is not the only route to protecting against SLAPPs, it highlights the vital need for judges across the world to acknowledge the material and motivational conditions which surround this litigation and protect equality (and integrity) of arms.

What next?

Hopefully, the proliferation of new research on SLAPPs will encourage members of the judiciary the world over to call out this abuse of process and refuse such litigation the opportunity to progress beyond preliminary stages. For instance, Index on Censorship’s 2020 report, ‘A gathering storm: The laws being used to silence the media across Europe’ summarises the lay of the land across 29 nations, whilst The Business & Human Rights Resource Centre’s recent report, ‘SLAPPed but not silenced’, collates analysis for the first time of thousands of lawsuits targeted at those who have voiced concerns about ‘irresponsible business practices’.

Further, campaigning organisations CASE (Coalition Against SLAPPs in Europe) and Protect the Protest have been working determinedly in Europe and the USA respectively, advocating for reform, and advising civil society members targeted by SLAPPs.

This advocacy has not gone unheeded. In April 2021, the EU appointed its first ever rapporteur to lead anti-SLAPP efforts, Roberta Metsola. Then, on 27 May 2021, the European Parliament held a hearing to set the ground for its anti-SLAPPs report, which is being prepared jointly by the Committees on Legal Affairs and Civil Liberties. The MEPs involved recognised the need for protections to extend to civil society, and for judges to be trained to handle such cases. So, while it is doubtful that big business will halt its harm offensive, it is possible that, with continued advocacy and reform, the power of SLAPPs may become a trend of the past.

A recording of ‘Resisting SLAPPs: Challenging corporations who weaponise the law’ is available online.