Types of Claims
Module 5: Defamation
Defamation suits are being abused to silence critics and journalists. The term “strategic lawsuits against public participation” (SLAPPs) is being used to describe cases which aim intentionally to bury critics under expensive and baseless legal claims in order to intimidate and silence them. The objective in these cases is not a positive judgment but rather to leverage the threat of financial damage through costly litigation. Defamation allegations are often used as the underlying complaints in SLAPP suits.
In many cases, courts have found against plaintiffs bringing such suits. For example, in the case of Raub Australian Gold Mining Sdn Bhd v. Hue Shieh Lee,(1)
a mining company brought a complaint for libel and malicious falsehood before the Malaysian courts against the author of two articles. In these articles, the author had alleged the existence of medical complications suffered by residents in the vicinity of the company’s mining operations. Although the suit ultimately failed, the mere threat of costly, protracted litigation against well-financed corporations can have a chilling effect on the freedom of expression of activists and journalists.
A limited number of jurisdictions, such as certain provinces in Canada,(2) have adopted anti-SLAPP legislation to protect freedom of expression by allowing baseless defamation and other cases to be dismissed at an early stage of the proceedings and sometimes also to provide for special remedies for defendants to reclaim costs from the claimants. However, there is a need for much more widespread adoption of such anti-SLAPP laws to protect critical speech. A 2020 study from the Business & Human Rights Resource Centre found that in 2019 Southeast Asia was the region with the second highest incidence of recorded SLAPP suits (after Central America) and that the Philippines was the only state in the region with legislation defining SLAPPs, albeit with its application restricted to environmental cases.(3)
Online harassment as a method of suppressing dissent
Online harassment of journalists using non-legal means is another too-often used method of stifling freedom of expression and dissent. Women journalists have been found to disproportionately be subjected to online harassment.(4) Online harassment can take many forms, including surveillance, posting threatening messages, hacking, doctoring or sharing personal images and other forms of ‘doxxing’ (i.e. maliciously sharing personal or identifying information).
Anonymous harassing messages can be difficult to trace but, when part of a broader pattern of online harassment, they may be evidence of a state-sponsored campaign to harass dissidents. In Vietnam, for example, Amnesty International reported dozens of incidents of activists receiving threatening online messages.(5)The report noted that the deputy head of the Vietnamese military’s political department had in December 2017 introduced a cyberspace military battalion made up of around 10,000 ‘cyber-troops’ tasked with information warfare and correcting what the government deemed “distorted information on the internet”.(6)
A number of insult and other related laws are still in place across Asia and continue to pose risks for journalists and others critical of government. Thailand, for example, has particularly draconian ‘lèse majesté’ laws, with one individual receiving a 43-year prison sentence for insulting the royal family, a sentence that elicited condemnation by multiple UN special rapporteurs.(7) Likewise, the crime of sedition remains on the statute books in many countries and continues to be used to stifle freedom of expression. Sedition has been defined as the crime of “incitement of resistance to or insurrection against lawful authority.”(8)
A more recent development has been the passing of ‘false news’ laws in various countries. These laws are justified by states as being necessary to protect national security or public order and to deal with the misinformation pandemic that has been unleashed by the growth of the internet and social media. Inasmuch as they generally prohibit the dissemination of false news, these laws represent a breach of the right to freedom of expression.
The UN Human Rights Committee and regional courts, including the Inter-American Court of Human Rights, the African Court on Human and Peoples’ Rights and the European Court of Human Rights, have increasingly argued that public officials should enjoy less protection from criticism than others.(9) Because of their status, access to the media, and power, public officials can use their office to try to curtail freedom of expression and prosecute critics. Additional protections for those who criticise them may therefore be warranted to counter this imbalance of power. In addition, there is a real need for those serving in public office to be open to criticism and public input. As the European Court found:
“The [politician] inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must display a greater degree of tolerance, especially when he himself makes public statements that are susceptible of criticism.”(10)
Oberschlick v. Austria, Application No. 20834/92 (1997), para 29
The Office of the High Commissioner for Human Rights (OHCHR) has also called for the abolition of the offence of ‘defamation of the State,’(11) and some jurisdictions have refused to allow public authorities, as such, to sue for defamation.(12) The ECtHR has limited such suits to situations which threaten public order, implying that governments cannot sue in defamation simply to protect their honour.(13)