See you in court: a rise in legal attacks against rights defenders aims to silence corporate critics

Athit Kong has been fighting to stay out of prison for more than four years. The Cambodian union leader faces criminal charges of intentional violence, obstructing public officials and obstructing a public road for helping organise a labour action in 2016 to win back the jobs of some 40 bus drivers.

The charges were brought against Athit and three other labour activists by Capitol Bus Company, the employer that allegedly fired the drivers for attempting to set up a union. And he says his case is hardly an isolated one.

“A lot of other union leaders, especially from independent unions, are facing [legal] cases as well, which really impacts our ability to organise,” says Athit, the president of the Coalition of Cambodian Apparel Workers Democratic Union. “When people hear about more and more union leaders being sued, arrested and under pressure, it scares them away from actively participating in union activities.”

Legal attacks by companies on trade union organisers and other human rights defenders are on the rise globally, according to a recent report by the London-based Business & Human Rights Resource Centre (BHRRC). The report, titled Defending Defenders: Challenging Vexatious Lawsuits in Southeast Asia, also identifies central America, eastern Europe and Russia as additional hotspots for judicial harassment. It says recorded instances of such cases have increased worldwide at an average rate of 48 per cent annually since 2015, jumping 84 per cent last year.

“We have seen a rise in judicial harassment as an effective, pernicious tool to silence and intimidate critics,” says Maysa Zorob, head of corporate legal accountability at BHRRC and the author of the report. She adds that “the vast majority of cases are brought based on libel or other defamation charges”.

Five of the nine case studies detailed in the report take place in Thailand, where each criminal defamation conviction can be punished by up to two years in prison.

Human rights researcher and consultant Sutharee Wannasiri found herself facing three such charges after sharing a video on social media that was produced by her then-employer, the NGO Fortify Rights. Wannasiri and others had been investigating the case of 14 migrant workers who had gone public with claims of have suffered serious labour abuses on a poultry farm operated by the Thammakaset Company.

“The workers had used an official government channel to submit their complaint and won a labour compensation case from the company,” says Wannasiri. “A court found their rights were violated, including by receiving payment under minimum wage, underpaid overtime, and having their passports confiscated, but instead of paying the remedy to the workers, the company started harassing them.”

Receiving SLAPPs

Thammakaset has filed a total of 36 legal cases against people who have tried to bring attention to its alleged labour-rights violations, including the 14 migrant workers, rights defenders like Wannasiri, and journalists.

At least 17 of these cases, including the ones against Wannasiri, are considered by BHRRC and other observers to be “strategic lawsuits against public participation,” better known as SLAPPs.

“SLAPPs are effective because they masquerade as legitimate legal claims but are really an expression of power and resource imbalances between companies and workers or communities,” says Zorob. “They often involve years of litigation that are not only very costly but also very stressful. They essentially prevent human rights defenders from doing their work, because they are spending all of their resources to fight these lawsuits instead.”

Activist Andy Hall, another human rights defender targeted by Thammakaset, has faced multiple legal cases for his activities in support of migrant worker rights in Thailand. In addition to the poultry company cases, he has spent years fighting criminal and civil defamation suits filed by pineapple company Natural Fruit over a report he researched in 2013 on alleged abuses at the firm’s canning operation.

“Once you are prosecuted, you become obsessed with defending yourself, with thinking about the case. The fear really impacts you psychologically,” says Hall. The pressure drove him to leave Thailand, his home for more than a decade, in 2016, and Hall says he spent a year at a monastery to recover from the stress. “I was in and out of courts for years, and I just couldn’t take it anymore,” says Hall. “The cases made it impossible for me to do the work that I had been doing in Thailand.”

Both Hall and Wannasiri say the legal cases against them have had a chilling effect on other people’s willingness to speak up for workers’ rights.

“The local media and human rights organisations in Thailand that we reach out to are very reluctant to report on the [Thammakaset] case, because they are afraid they might end up facing [legal action] too,” says Wannasiri.

Undermining the rule of law

Use of a country’s judicial system to target rights defenders also more broadly undermines public trust in institutions, according to Carlos Lopez, a senior legal adviser on business and human rights for the International Commission of Jurists.

“The more these SLAPP strategies are used, and the more that law enforcement officials collaborate with them, the more rule of law and democratic government is undermined,” says Lopez. “Both civil society and ordinary citizens have less confidence in the legitimacy of the law when the judiciary is seen as a tool of oppression for the economically powerful, rather than as an instrument to protect rights and the public interest.”

According to Zorob, no countries in south-east Asia have legal definitions of SLAPPs, or of human rights defenders. “This makes it harder for lawyers to ask that these cases be dismissed, and for courts to expose them for what they are,” she says. “Two of our recommendations [in the new report] are to define SLAPPs and to penalise their use, to make sure litigation costs are borne by the companies.”

Raising awareness of these legal tactics among bar associations, lawyers, members of the judiciary and law enforcement is also important, adds Lopez. “Pushing for legislation can be a long process, with uncertain results, but there are good examples of supreme courts and other bodies with some degree of autonomy issuing guidance on how to protect rights,” he says.

Engaging the power of the consumer, and leveraging the corporate social responsibility principles adopted by international companies, is another key strategy. “There’s been a complete breakdown of trust between human rights defenders and corporations, but we need to find allies among them to do our work most effectively,” says Hall.

The Finnish retailing cooperative S Group, for example, supported Hall in his legal battle with Natural Fruit, removing the Thai firm from its supply chain after it refused to cooperate with external auditors.

Though the cases took a serious toll on him, Hall says that Natural Fruit’s legal actions in some ways backfired. “No one cared about [their actions] until I was prosecuted,” he says. “The report we did was just another report on the shelf.”

The suits filed by Thammakaset likewise raised awareness about the conditions of migrant workers in the poultry industry, Hall says. One of the company’s big customers, Thai food conglomerate Betagro, announced after the abuse claims came to light that it had halted its business relationship with the Thammakaset-operated farm over the issue.

“Businesses and investors need to do due diligence to ensure that they don’t continue importing from or working with partners in Asia – or anywhere else in the world – that have a track record of harassing and intimidating workers and human rights defenders,” says Lopez. “If they don’t do this, they are providing the revenue that allows those practices to continue.”