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Corporate Legal Accountability Quarterly Bulletin - Issue 24, September 2017

Welcome to our Corporate Legal Accountability Quarterly Bulletin -- highlighting a specific topic each quarter, as well as key developments in corporate legal accountability.  The Corporate Legal Accountability hub on our website provides objective, concise information about lawsuits against companies in which human rights abuses are alleged.
This bulletin and previous issues are available in English, ChineseFrench, GermanRussian and Spanish.

Quarterly Highlight: Lawsuits by companies seek to silence accountability advocates

Imagine that you are a lawyer, presenting your work and some legal cases you are involved in at a university, and that soon afterward, you receive notice that you are being sued for defamation.  This is exactly what happened to the Centre for Environmental Rights (CER) in South Africa.  In a presentation at the University of Cape Town in January 2017, two CER lawyers, Tracey Davies and Christine Reddell, stated that Mineral Sand Resources’ (MSR) proposal to mine the sand dunes of Xolobeni was “environmentally destructive”.  In May, they were notified that MSR (part of the Australian company Mineral Commodities) was suing them for defamation, along with a local community activist, Davine Cloete.  CER said that this lawsuit was a Strategic Lawsuit against Public Participation (SLAPP) – “Here is a message to corporates who think they can use lawsuits and other intimidation tactics to silence the voices of activists…We will fight back‚ we will continue to investigate corporate misdeeds‚ and we will rally support from partners – but most of all‚ we will not be silenced.”

SLAPPs are often filed by companies to intimidate and silence people seeking to participate in matters of public interest (local communities, trade unionists, journalists, NGOs, lawyers, whistle-blowers), tying them up in costly litigation processes until they abandon their criticism or opposition.  In most cases they have little likelihood of succeeding on their merits.  But even requiring victims of human rights abuse, NGOs, journalists and others to defend against these claims can threaten civic space and keep victims from accessing justice.  The NGO Sherpa is being sued in France by the construction company Vinci for defamation after filing a claim against Vinci over allegations of forced labour on its construction sites in Qatar.  According to Sherpa, SLAPPs have increased and so has the amount demanded by companies as damages, which are often far out of proportion to the means of those targeted in SLAPPs.  Sherpa has also said that given the financial risks of these suits, they lead to self-censorship by organizations, threatening freedom of expression.

SLAPPs occur in developed and developing countries alike; the following are just a handful of recent examples.  In Thailand, the lawsuits for defamation filed by the company Natural Fruit against Andy Hall, a British labour rights activists and researcher following a report alleging labour abuse against migrant workers in the company's factories received wide coverage.  Thammakaset Farm also filed a defamation lawsuit in Thailand against workers suing it over claims of forced labour and other workplace abuses at the poultry farm.  Defamation is a criminal offense under Thai law, and can carry a prison term.  In Honduras, the energy company DESA (Desarrollos Energéticos) brought a criminal defamation lawsuit against Suyapa Martínez of the women’s rights NGO Centro de Estudios de la Mujer.  She had publicly alleged that DESA was involved in planning the murder of the activist Berta Cáceres for opposing the dam-building project awarded to DESA; DESA’s claim was dismissed.  Last year in Canada, a judge explicitly called the defamation lawsuit brought by Taseko Mines against the Western Canada Wilderness Committee a SLAPP and “an attempt to use the litigation process to silence critics on a matter of public importance…In the context of a defamation action, seeking punitive damages may serve to silence critics”.  The case was dismissed but the company is appealing, and denies that it intended to silence its critics.

The US is seeing its own share of lawsuits brought by companies against advocates for speaking out against their businesses.  Murray Energy and its CEO Robert Murray sued TV comedian John Oliver for airing a TV sketch that criticised Murray’s mine safety practices, and that cited the collapse of one of Murray’s mines in Utah. The American Civil Liberties Union, in its amicus curiae brief in support of Oliver, described the suit as “ridiculous” and other legal experts have called the suit “frivolous” and “vexatious”.  In another case, Energy Transfer, the developer behind the Dakota Access Pipeline, brought a racketeering lawsuit against Greenpeace, Banktrack, Earth First! and other groups for allegedly having “manufactured and disseminated materially false and misleading information about Energy Transfer and the Dakota Access Pipeline” – alleging that they inflicted “billions of dollars of damage” against the pipeline.

In light of such legal attacks, some accountability advocates have decided to fight further and counter-sue the companies.  At the end of May 2017, Andy Hall filed a counter-suit against Natural Fruit.  “I was encouraged to initiate these litigations by migrant workers whom I continue to support in Thailand. After my criminal conviction, many workers and rights defenders in Thailand and even globally told me they hesitate fully on abuses due to fear of negative repercussions. It is imperative that these two sets of criminal prosecutions claim space back for victims of rights abuses, exploited workers and human rights defenders to speak out with confidence about unlawful conduct by business and state actors,” said Hall.  He had the support of the international community, but most advocates at the local level do not, which makes things harder for them and make them more vulnerable.  The NGO CALAS (Centro de Acción Legal Ambiental y Social), which works to promote the participation of communities and respect for the collective rights of indigenous peoples in Guatemala, has also been sued by companies for defamation.  To seek justice against human rights defenders, it decided to start litigation against those companies.  This includes, against Repsa (over ecocide) and Minería de Guatemala whose license has been suspended for environmental crimes.

Increased reporting of SLAPPs in recent years has helped raise awareness about the issue and pressured governments to act.  Some have already taken positive steps.  The Australian Capital Territory, the province of Ontario in Canada and the state of California in the US have passed “anti-SLAPP” laws to ensure that the public can take part freely in public discussions without fear of reprisal.   NGOs are advocating for similar laws to be passed in other countries, including South Africa and France, but at this point, there are no planned bills in Europe.  Governments can take other measures to keep courts from being used against corporate accountability advocates, such as decriminalising defamation, as supported by international organizations (e.g., African Commission on Human and Peoples’ Rights, UN Special Rapporteur on Freedom of expression) and leading NGOs (Article 19, International Commission of Jurists).  A recent expert report commissioned by the French Government issued recommendations to the government on SLAPPs, including civil fines of up to 15,000 euros for bringing a lawsuit that hinders the freedom of expression of the defendant; and, for malicious prosecutions specifically targeting academics for statements made in their research activities, penalties of up to seven years of prison and 375,000 euros.   

Companies can also help prevent the shrinking of civic space by supporting human rights defenders who are legally harassed.  In the Andy Hall defamation lawsuit, the company S Group, which sourced from Natural Fruit, testified in 2016 in favour of the activist at his trial.  The company explained its decision: “…[A]s a responsible company we decided to testify, because S Group is part of the value chain of this case…It is in the interest of companies, too, to have a functioning civil society.”
Legal developments

New case profiles & case snapshots

Lawsuit against Eni (re oil spill in Niger Delta): In May, a Nigerian community sued Eni in Italy over an oil spill in the Niger Delta in 2010.  The community is alleging that the oil damaged its sources of livelihood and is demanding clean-up and compensation.  The oil pipeline was operated by Nigerian Agip Oil Company (NAOC); Eni is the majority owner of NAOC. Eni denied wrongdoing and pointed out that NAOC's clean-up had satisfied the Nigerian authorities. A first hearing is set for December.

Lawsuit by Murray Energy (against John Oliver re TV sketch, USA): On 21 June, Murray Energy and its CEO Robert Murray filed a defamation suit in the US against TV comedian John Oliver – along with HBO, Time Warner, and writers for the show “Last Week Tonight”. The suit claims that Oliver and his team “executed a meticulously planned attempt to assassinate the character of and reputation of Mr. Robert E. Murray and his companies” by airing an episode that criticised Murray’s mine safety practices and that cited the collapse of one of Murray’s mines in Utah, which killed nine people.

Lawsuit against Vinci (re forced labour in Qatar): In March 2015, the NGO Sherpa filed a complaint in France against Vinci, and the managers of its Qatari subsidiary QDVC, over allegations of forced labour and servitude of migrant workers on its construction sites for the 2022 football World Cup in Qatar.  Vinci denied the allegations.  In April 2015, the prosecutor’s office opened a preliminary investigation to check the allegations; the case is on-going.  In turn, Vinci filed two lawsuits against Sherpa in March and May 2015: one for defamation and one for undermining the presumption of innocence.  The former lawsuit is on-going.  The latter was dismissed in June 2017. 


Updates to existing case profiles & snapshots

Abu Ghraib lawsuits against CACI, Titan (now L-3): In June, a US court ruled that the claim of victims of torture in Abu Ghraib prison in Iraq against CACI can proceed.

Lawsuit against Anvil Mining (re complicity in Kilwa massacre in Dem. Rep. of Congo): In June, the African Commission on Human and People's Rights lambasted Anvil Mining for its alleged complicity in the 2004 civilian killings and urged the government to reopen the criminal investigation into the company's actions.

Lawsuit against Arab Bank (re complicity in financing terrorist attacks in Israel): In June, civil society organizations submitted an amicus brief to the US Supreme Court in support of the families of the victims and survivors of the terrorist attacks.  This autumn, the Supreme Court will decide on whether the Alien Tort Statute applies to companies.

Lawsuit against Betagro & Thammakaset (re migrant workers exploitation in Thailand):  In response to the worker's claim, the owner of Thammakaset 2 filed a defamation lawsuit against them and labour activist Andy Hall in October 2016.  In August 2017, the Don Muang Court accepted the company's criminal defamation case for full trial.

Lawsuit against BHP Billiton & Vale (re dam collapse in Brazil):  In July 2017, the federal court suspended the criminal case filed against 21 people, including top executives of BHP Billiton, Vale and Samarco, for the 19 deaths resulting from the dam collapse.

Lawsuits against Chiquita (re complicity in killings in Colombia): In May, a group of lawyers and NGOs requested the prosecutor of the International Criminal Court to investigate the complicity of Chiquita officials in crimes against humanity by paramilitaries as part of the Court’s current inquiry in Colombia.
Lawsuit against DynCorp (re chemical spraying in Colombia & Ecuador): In April, a US federal court jury declined to award damages in the first "test-trial" due to DynCorp’s lack of control over government pilots flying chemical spraying missions.  However, the jury found that it was responsible for a subcontractor’s later flights which will be relevant for future cases that may be brought by other plaintiffs.

Lawsuit against Intl. Finance Corp. (re financing of coal-fired plant in India): In June, a US appeals court ruled that the IFC is entitled to “absolute immunity” and cannot be sued by the communities harmed by IFC projects.  In July, the communities asked a full court of appeals to review its immunity doctrine.

Gun industry lawsuit (re Sandy Hook shooting in USA): In May, Remington and Bushmaster asked the Connecticut Supreme Court to dismiss the case, arguing that only the shop that sold the gun could face a lawsuit for "negligent entrustment ".

Lawsuits against Shell (re Nigeria - Kiobel & Wiwa): In June, Esther Kiobel and three other women launched a civil case against Shell in the Netherlands.  They claim the company was complicit in the 1995 killings of their husbands, who were among the "Ogoni 9" activists who contested Shell's operations and the Nigerian Government over the effects of oil pollution. Shell has denied any involvement in their executions.
Lawsuit against Tahoe Resources (re shooting at Guatemala mine): In June, the Canadian Supreme Court declined to hear an appeal by Tahoe Resources of the decision of the British Columbia Court of Appeal that Canada had jurisdiction over the claims.  The lawsuit will therefore continue.  In July, the Supreme Court of Guatemala suspended Tahoe Resources' mining licenses pending resolution of allegations that the company had failed to consult with indigenous communities.
Lawsuit against Texaco/Chevron (re oil pollution in Ecuador): In April, the legal representatives of the affected community requested the US Supreme Court to review a lower court racketeering decision barring enforcement in the US of the $9 billion Ecuadorian judgment against Chevron.  In June, the Supreme Court declined to hear the case. A hearing for the community’s enforcement action in Canada is set for October.
New translations

In Arabic

قضية فينشي (المتعلقة بفرض العمل القسري في قطر) [Lawsuit against Vinci (re forced labour in Qatar)]

In French

Procès contre Vinci (concernant le travail forcé au Qatar) [Lawsuit against Vinci (re forced labour in Qatar)]
New blog posts
Why it’s getting harder (and more dangerous) to hold companies accountable, Ciara Dowd & Elodie Aba, Business & Human Rights Resource Centre, May 2017
If you are interested in contributing to a guest post on corporate legal accountability, please contact us. 
Other news

From Business & Human Rights Resource Centre

Creating a paradigm shift: Legal solutions to improve access to remedy for corporate human rights abuse, Amnesty International and Business & Human Rights Resource Centre, 4 Sep 2017

New interviews of lawyers fighting for corporate accountability
  • [video] Jia Yaw Kiu, Malaysian Bar Association & Erik Coubut (Indonesia)
  • Previous interviews available here
New section gathering materials on lawsuits by companies against corporate accountability advocates

Video interview: Andy Hall on his counter-suit against Natural Fruit & Thai authorities, Jun 2017

Corporate impunity is common & remedy for victims is rare - Corporate Legal Accountability Annual Briefing, Apr 2017 We are recruiting a Legal Research Intern (deadline to apply: 24 September 2017)

Reports, articles & guidance by leading experts & organizations

Fighting the tide. Human rights and environmental justice in the Global South, Dejusticia, 23 Aug 2017

Handbook for lawyers on business and human rights, Intl. Bar Association, Jul 2017

State of Civil Society Report 2017, CIVICUS, Jun 2017
  • Includes guest essay on transnational strategic litigation for corporate accountability
Business and Human Rights: Reflections from Latin America [Los derechos humanos y las empresas: reflexiones desde América Latina], Instituto Interamericano de Derechos Humanos, May 2017 (available only in Spanish)
  • Includes articles about business and human rights judgments in Mexico; the concept of corporate complicity for transitional justice in Argentina; liability of companies for environmental crimes
UN Special Rapporteur Maina Kiai launches FOAA Online! – a web-based collection of legal arguments related to assembly and association rights, 28 Apr 2017

Strategic Litigation Impacts: Indigenous Peoples' Land Rights, Open Society Justice Initiative, 24 Apr 2017

To stop the relentless march of climate change we must empower those most at risk, Vivek Maru, Namati, on Wired (USA), 21 Apr 2017
  • On legal empowerment of local communities as a tool to address climate change and environmental harm due to companies’ activities
Improving access to remedy in the area of business and human rights at the EU level, European Union Agency for Fundamental Rights, 10 Apr 2017

International Human Rights Litigation: A Guide for Judges, David Nersessian, Babson College, Dec 2016


2017 UN Forum on Business and Human Rights - Realising Access to Remedy (27-29 Nov)

Business & Human Rights on Both Sides of the Atlantic in a world of Trump and Brexit, Matrix Chambers, Leigh Day, Business & Human Rights Resource Centre, 11 Jul 2017
  • Podcast of the event that discusses business and human rights litigation in the US and UK, including the obstacles, opportunities, and latest trends
Video: Elements of a diplomatically viable treaty on business & human rights, Business & Human Rights Resource Centre, Univ. of Notre Dame, British Institute of Intl. and Comparative Law & Univ. of Essex, 16 May 2017
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