Corporate SLAPP actions against human rights defenders in Switzerland must end to respect their right to freedom of expression
Amnesty International, along with members of civil society in the CASE coalition and Corporate Crimes Network, welcome the decision of the District Court of Bern-Mittelland to acquit the three individual authors of a report alleging that Kolmar Group AG (“Kolmar”) may have violated international law upon purchasing fuel from an international smuggling network at the height of the second Libyan civil war. Kolmar’s filing of criminal and civil action against these human rights defenders bears the hallmarks of a Strategic Lawsuit Against Public Participation (“SLAPP”) intended to silence critical voices. Following their acquittal today, Kolmar should stop inhibiting the right to freedom of expression of human rights defenders, including by not appealing the verdict and withdrawing a related civil lawsuit, the undersigned organizations said today.
In 2020, the NGOs Public Eye and TRIAL International published a report entitled, “Libyan fuel smuggling: a Swiss trader sailing through troubled waters,” which found that Kolmar purchased fuel sourced from a network of middlemen who were accused of smuggling gasoil from the Zawiya refinery during the civil war in Libya. Kolmar has denied knowledge of any illegal activity associated with its procurement of fuel from Libya in response to the report.
After Kolmar filed a criminal complaint and appealed its dismissal by the Bern-Mittelland Public Prosecutor’s Office, the report authors faced criminal sanctions on charges of defamation until a court of law found them not guilty. In September 2023, Kolmar also filed a civil claim against Public Eye, TRIAL International, and the three authors of the report. Kolmar is seeking damages of USD 1.8 million due to harm they allegedly caused to the company’s professional reputation, which it believes has violated its personality rights.
The undersigned organizations regard Kolmar’s legal actions to be SLAPPs that seek to intimidate and silence human rights defenders and other critical voices from the legitimate exercise of their right to freedom of expression, which protects reporting on corporate human rights abuses. SLAPP suits are vexatious legal actions brought to intimidate, deter or punish persons who seek to participate and express themselves on matters of public interest. SLAPPs can often be identified by their partially or fully unfounded claims, the aggressive or disproportionate remedies sought, and/or the use of dilatory or selective tactics to deplete the resources of their target and restrict or penalize the exercise of human rights in the civic space. The cost of fighting these legal actions can put extreme financial and other pressure on human rights defenders that force them to repurpose their limited resources to defend the lawsuit.
The SLAPPs brought against Public Eye, TRIAL International, and the human rights defenders who authored the report unduly infringe on their right to freedom of expression enshrined in Article 19 of the International Covenant on Civil and Political Rights and Article 10 of the European Convention of Human Rights. These conventions guarantee the right to freely express ideas and opinions of all kinds, including the right to seek, receive and impart information and ideas. The UN Declaration on Human Rights Defenders further affirms that all States must protect the right to seek, obtain, receive and hold information in relation to human rights, to impart that information to others and to ensure that human rights defenders can exercise this right without fear of reprisals. States have an obligation not only to respect the right to freedom of expression but to ensure that the rights of all individuals subject to their jurisdiction will be protected from arbitrary interference by private parties.
While the right to freedom of expression is not absolute, restrictions may be permissible so long as they are provided by law and demonstrably necessary and proportionate to a legitimate aim, including the protection of the rights and reputations of others. However, criminal defamation laws have been increasingly deemed inconsistent with international human rights law as there are less intrusive measures that could still redress harm to an individual’s reputation.
Kolmar’s legal actions appear to have exploited an imbalance of power as a well-resourced corporation that has directed its legal team to use multiple means at their disposal to intimidate civil society organizations and human rights defenders who have been critical of their operations. The use of criminal defamation charges to address allegations of harm to a corporation’s reputation is an unnecessary and disproportionate measure that inhibits the exercise of the right to freedom of expression. Moreover, the company’s aggressive demand for USD 1.8 million in compensation exacts an exorbitant price from Public Eye and TRIAL International for legitimate human rights reporting that was conducted in good faith and in the public interest. As such, the SLAPP action not only threatens the continued operations of Public Eye and TRIAL International but has a broader chilling effect on civil society and human rights defenders working to end corporate misconduct, including the undersigned organizations.
All companies have a responsibility to respect human rights, including the right to freedom of expression, as reflected in the UN Guiding Principles on Business and Human Rights. Kolmar has acknowledged this responsibility in the 2022 statement of its CEO Ruth Sandelowsky expressing “continued support” for the company’s participation in the UN Global Compact. The undersigned organizations urge Kolmar to abide by its responsibility to respect human rights and stop inhibiting the freedom of expression of its critics, including by not appealing the acquittal of the human rights defenders announced today and withdrawing its related civil complaint.
The undersigned organizations also urge the Swiss government to amend its criminal code to ensure that defamation is solely treated as a civil matter. With respect to civil proceedings, Switzerland should establish a comprehensive legal framework to provide structural and procedural safeguards for the prevention of SLAPPs, as well as mechanisms that provide full and fair remedy for the harm caused to their targets. Among other measures, the undersigned organizations recommend that Switzerland consider instituting an early dismissal procedure whereby judicial authorities can urgently evaluate whether a legal complaint constitutes a SLAPP and, if so, counter its harmful impact. Furthermore, the undersigned organizations suggest that Switzerland extends the right to legal aid beyond individuals to civil society organizations and other legal persons that can be targeted by SLAPP actions to ensure equality of arms and mitigate against their impact.
Signatures:
Amnesty International
Xnet
The Daphne Caruana Galizia Foundation
Agent Green Association
Foundation Atelier for Community Transformation – ACT
Sherpa
FIDH
ECCHR
Community Resource Centre Foundation
Al-Haq
Global Legal Action Network
Greenpeace Switzerland
Libera
OBC Transeuropa (OBCT)
Blueprint for Free Speech
Frente Cívica, Portugal
Justice for Journalists Foundation
Rettet den Regenwald – Schweiz
Syria Justice and Accountability Centre
Civil Rights Defenders
Southern Africa Resource Watch
Centro de Estudios Legales y Sociales
Transparency International