Why It's Getting Harder (and More Dangerous) to Hold Companies Accountable
There is a crisis of impunity for corporate human rights abuses and it is getting worse. In our work with the Business & Human Rights Resource Centre, we track the latest legal developments in holding companies accountable for human rights abuses, to share knowledge among lawyers and ultimately strengthen accountability. For years, we have highlighted increasing barriers for victims to obtain justice. As companies are rarely brought to account, there have been few reasons for optimism.
So bad is the crisis of impunity that we have had to dedicate a significant portion of space in our latest Annual Briefing to the threats directed at advocates and lawyers working on corporate accountability. In 2016, we even saw Pavel Sulyandziga, a well-known indigenous leader in Russia and member of the UN Working Group on Business and Human Rights, speak out about the harassment he and his family are facing because of his work supporting local communities to retain control of their land from extractives companies.
The Law as a Weapon
Human rights defenders working on corporate accountability have faced killings, beatings and threats and are rarely, if ever, able to obtain justice. Moreover, the law is often used as a weapon. In the last two years, the Business & Human Rights Resource Centre has tracked over 450 cases of attacks against human rights defenders working on corporate accountability. The most common is judicial harassment (40% of cases).
In February 2016, six activists opposing the use of villagers' land for Socfin plantations were jailed after a Sierra Leone court found them guilty of destroying 40 palm oil plants. The activists say they are innocent and see the trial as a "tactic to get us into prison so that we cannot raise our voice on the unacceptable land deals in Malen Chiefdom."
These types of legal harassment are often not intended to be successful claims, but rather are designed to silence human rights defenders by tying them up in costly litigation processes. In France, the NGO Sherpa has been sued by the company Vinci for defamation, after the NGO filed a criminal complaint in March 2015 against the company and its Qatari subsidiary over alleged forced labour on their construction sites in Qatar. Sherpa said of the lawsuits: "[b]y involving us in these costly proceedings, Vinci is plainly seeking to pressure us into withdrawing our action for lack of resources."
These lawsuits are often a disproportionate response to statements as small as social media posts. During a mission to Indonesia in September 2016, we met with the NGO KontraS, which is currently campaigning against criminalisation of human rights defenders. They told us of an activist from the NGO WALHI (Friends of the Earth Indonesia) who faced a criminal defamation complaint by supporters of a land reclamation project in Bali, over a Twitter post that mocked them. In the US, community activists were sued for USD 30 million by Green Group Holdings after they complained on social media about the company's landfill and its impact on the local resident's health. Lee Rowland, a senior staff attorney with the American Civil Liberties Union who worked on the case, said: "No one should have to fear a multi-million dollar lawsuit just for speaking up about their community -- but our clients did."
Lawsuits like these have a chilling effect on human rights activism and advocacy. The inequality of power and resources between large corporations with teams of lawyers and grassroots human rights defenders means that many activists may give into the demands of corporations rather than enter a costly legal battle. This chilling effect is immeasurably worse when defenders are threatened with physical assaults and death.
From Impunity to Accountability
Companies benefit from an environment where there is freedom of speech, satisfied workers, and an increased consumer base, and governments attract investment when there is a strong rule of law. Governments should decriminalise defamation as advocated by international and regional organizations and leading NGOs, enact laws to protect human rights defenders and their lawyers from harassment, and provide an enabling environment and open civic space for those working on corporate legal accountability. (Of course, detractors would argue that criminal defamation laws are needed to protect their reputation, but there are still civil liabilities.) Governments should pass legislation to address strategic lawsuits against public participation, like those passed in several US states and Canadian provinces.
Corporations can influence governments to improve by voicing opposition to governmental action or legislation that threatens to close the civic space. Natural Fruit filed a defamation lawsuit in Thailand against Andy Hall, a British labour rights activists and researcher, over a report that alleged labour abuse against migrant workers in the company's factories. The Senior Vice President of S Group, a Finnish retailer that sourced from Natural Fruit, testified in support of Andy Hall in the Thai criminal defamation lawsuit against him in July 2016. S Group's action in this case demonstrates the steps companies can take to support human rights defenders under legal attack. Companies can also draft a dedicated policy on human rights defenders, like adidas has done, explaining why human rights defenders are important to their work and setting out expectations towards the company's suppliers.
Everyone benefits from the work of human rights defenders and the promotion of the rule of law, so businesses and governments should work to support and protect them. The legal system should only be used to bolster the rule of law, not burden its defenders.
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