Weaponizing the Law: The Rise of Abusive Private Criminal SLAPPs and Their Chilling Effect on Justice
April 11, 2024 | It’s well known that in many countries, what you say, post or publish can land you in jail; but what’s less commonly acknowledged is that sometimes this can be at the behest of a private individual offended by your words, without any government involvement at all. That’s what happened to Gladys Lanza Ochoa, a prominent human rights defender who represented a woman alleging sexual harassment against her supervisor. The supervisor then filed a criminal complaint against Lanza and her client, alleging defamation and slander. In 2015, a court in Honduras sentenced Lanza to 18 months’ imprisonment, where she passed away while her case was on appeal.
These kinds of cases are referred to as Strategic Lawsuits against Public Participation, or SLAPPs, and this blog post will show why evidence-based action is needed to reform these meritless and abusive legal actions typically filed against journalists, activists, political opponents, women reporting abuse, whistle-blowers and others. Those filing SLAPPs generally allege defamation or privacy claims to silence their critics and deter others from bringing critical information into the public sphere. The dangers to defendants in civil SLAPPs are substantial and include reputational risk, as well as long drawn-out and expensive judicial processes. Indeed, this is often the objective of those filing such suits.
However, criminal SLAPPs carry with them additional liabilities, including a criminal record and prison time. Private criminal SLAPPs drastically affect the lives and livelihoods of victims and are the topic of new research being undertaken by Columbia Law School’s Human Rights Institute as part of the Clooney Foundation for Justice’s TrialWatch initiative. Reports devoted to SLAPPs to date have generally focused on both criminal and civil cases, but this report will analyze the particular dangers of criminal SLAPPs lodged by private parties.
The possibility to lodge private prosecutions has a long history and was further spread throughout the world by colonizing powers. In the UK for instance, there is evidence of criminal processes having evolved out of a decentralized system of privately enforced law because crime was viewed as a harm perpetrated against the individual in which the state had only a minor interest. Courts, therefore, operated as a means to mediate between parties and to give those wronged an opportunity to be made whole. Currently, the ability to lodge private prosecutions is available in a wide range of systems, including common law, civil law and Islamic law jurisdictions.
Defamation offences are very commonly weaponized by those abusing private criminal prosecutions. According to UNESCO data, 160 countries (80 per cent) still criminalize defamation. While some states have begun to repeal their criminal defamation laws, in others criminal defamation provisions have been replaced or supplemented by cybersecurity, “fake news” and hate speech provisions. In countries that still have such laws on the books, hundreds of criminal defamation complaints can be filed each year, clogging the court system. Even where cases are ultimately dismissed at trial due to lack of evidence, defendants in such cases may lose their jobs, suffer from harassment and abuse and must put their lives on hold as meritless cases wind their way through the court system.
The abuse of private criminal prosecutions to retaliate against those who report sexual harassment is sadly one of the most common types of private criminal SLAPPs. As noted above, this scenario typically arises when a survivor makes a public allegation about their alleged abuser (eg, in print or social media, or in a legal context). The alleged perpetrator then files a criminal claim for defamation, denying guilt while asserting that any claims made against them are false and casting themselves as a victim of libel or slander. Alleged perpetrators also often attack the mental competence, intimate histories and motivations of their accusers. This tactic is successful due to ingrained and systemic gender bias in most societies (and criminal justice systems) that make it easy to impugn and cast doubt on the motivations of accusers, most often women.
Another common scenario is the use of private criminal SLAPPs by corporations to silence or retaliate against whistleblowers or workers advocating for their rights. One corporation in Thailand has lodged dozens of suits against human rights defenders, workers and journalists, alleging defamation for, among other things, publishing or otherwise publicizing details of allegations against the company as well as for standing up for the rights of those criticizing the company’s abusive labor practices. (TrialWatch previously filed an amicus brief in one of these cases). Such cases illustrate the great power and resource imbalance between corporations and human rights defenders that can drain resources and time, even leading some organizations to cease their operations permanently.
Another common manifestation of private criminal SLAPPs is their use against political opponents to silence them, derail their political careers, or render them powerless. In Cambodia for instance, the prime minister Hun Sen lodged two criminal defamation cases against one of his main opponents, Sam Rainsy, for posting messages on Facebook in 2019 that accused the prime minister of ordering another man’s death. Rainsy, who lives in exile in France, has been the subject of numerous politically motivated lawsuits, mostly defamation, since 2005. In the most recent case, a French court found that, although Rainsy was guilty of defamation, his right to freedom of expression under the European Convention on Human Rights would have been disproportionately undermined with that verdict. The Court ultimately dismissed the charges. This unsettling decision emphasizes that in a world where autocratic and authoritarian forces are on the rise, politically motivated criminal defamation presents a particular threat to democracies in decline.
Private criminal defamation cases that abuse and weaponize the court system against critics, journalists and human rights defenders upend our conception of truth and lies, as well as the roles of victim and offender, leading to extensive miscarriages of justice, a breakdown in the rule of law and loss of confidence in the court’s ability to deliver justice. New research by TrialWatch devoted exclusively to this subset of SLAPPs will shine a light on the sheer breadth of the abuse of criminal defamation laws by private parties in order to advocate for reform, strengthen the rule of law, and support robust freedom of expression around the world.
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Tejal Jesrani is the Director of the TrialWatch project at Columbia Law School’s Human Rights
Institute, a partner of the Clooney Foundation for Justice initiative that monitors and grades the
fairness of trials of vulnerable people around the world and defends the rights of those unfairly
imprisoned.
The Human Rights Institute advances international human rights through education, advocacy, fact-finding, research, scholarship, and critical reflection. We work in partnership with advocates, communities, and organizations pushing for social change to develop and strengthen the human rights legal framework and mechanisms, promote justice and accountability for human rights violations, and build and amplify collective power.
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