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Activists fight back after being SLAPPed with lawfare tactics

The use of Strategic Lawsuits Against Public Participation to intimidate campaigners is a global trend, but activists are taking a stand, writes Isabella Kaminski.

IN 1999, WHEN Shpresa Loshaj was 19, she fled her hometown of Decan, Kosovo, as a refugee and moved to Canada. When she returned in 2018, long after the war had ended, a journalist encouraged her to go into the hills and take a look at some new hydropower plants on the river Lumbardhi i Decanit. The journalist was investigating claims by local people that the plants run by KelKos, a subsidiary of Austrian energy firm Kelag, were operating without permits and potentially damaging the local ecosystem and water infrastructure.

Loshaj told DeSmog:

Having hit a wall trying to obtain responses from public authorities, Loshaj started campaigning to raise awareness of what she believed she had uncovered, including the company allegedly damaging drinking water pipes, putting cement into the river and drawing too much water leaving the riverbed dry - claims the company has denied.

She also claimed the upper part of the river had been destroyed because it was dug for gravel to build the power plants further downstream. The company does not deny extracting some material but says it was done with permission and that it is working on a plan with local authorities to remediate the damage. The company also blames some of the gravel extraction on local road building.

In 2020, while drafting a letter to the Austrian embassy detailing her allegations, Loshaj received a notice from KelKos' lawyers. They requested that she issue a public apology for her claims that the plants had been operating without permission and destroying the environment, which the company considered defamatory. Loshaj ignored the warning and sent the letter.

Defamation case

The company now maintains that "no power plant was in operation without legal permission," as Josef Stocker, spokesperson for KelKos' parent company Kelag told DeSmog. However, in a defamation suit the company filed against Loshaj after she sent the letter, KelKos said it had 'licenses for electricity generation for all its hydropower plants' but argued that it did not have environmental permits because a lack of legal and administrative capacity at Kosovo's Ministry of Environment and Spatial Planning meant that no hydropower plant in the country had been provided with one.

In June 2021, Amnesty International criticised KelKos for its 'baseless defamation lawsuits' against Loshaj and another activist, Adriatik Gacaferi. The human rights organisation characterised the company's filings as a Strategic Lawsuit Against Public Participation, or SLAPP, to "intimidate and silence activists from speaking out about the possible environmental damage caused by the company's exploitation of Kosovo's natural resources".

SLAPPs arose in the United States in the 1970s and '80s, where they remain a serious problem. They can take different forms across various jurisdictions and legal contexts, but they are an increasingly popular "lawfare" tactic used by powerful companies and individuals around the world to chill free speech and suppress dissent.

The Business and Human Rights Resource Centre (BHRRC), a London-based nonprofit seeking to advance human rights in business and eradicate abuse, has recorded 418 SLAPPs around the world since the start of 2015, with well over half relating to the environment.

Latin America is a hotspot. Last year, the BHRRC identified that since 2015, at least 149 claims bearing the hallmarks of SLAPPs have been brought against individuals and groups defending human rights and the environment in the region. Honduras, Peru, Mexico and Guatemala were the most affected countries.

Another 104 cases were recorded across Asia and the Pacific, mostly in Thailand, Cambodia and the Philippines.

Although there are various reasons why SLAPPs are concentrated in particular places, Lady Nancy Zuluaga Jaramillo, legal researcher at the BHRRC, says there is a "direct connection between the most affected regions and regions heavily dependent on natural resource sectors, such as mining, agriculture and livestock, logging and lumber and palm oil".

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Elsewhere, a 2017 paper in the South African Journal on Human Rights identified SLAPPs as an emerging obstacle to public interest environmental litigation in the country.

Europe is another problem area. According to a 2020 study commissioned by the European Commission, SLAPPs are 'increasingly used across EU member states, in an environment that is getting more and more hostile towards journalists, human rights defenders and various NGOs'.

Flutura Kusari, senior legal advisor at the European Centre for Press and Media Freedom (ECPMF), says SLAPPs have become a serious threat to public participation in Europe:

Speaking out

With the lawsuit hanging over her for more than a year, Loshaj was concerned that others would be intimidated by it:

And in fact, she found herself supported by other activists and human rights, free speech, and environmental groups who did not think KelKos' suit would succeed.

However, Loshaj concedes that her ability to speak out is partly due to her living in Canada, which shielded her from some of the potential risks facing environmental campaigners in Kosovo - some of whom fear their employers may come under political pressure to dismiss them if their protests garner too much attention. It also gave her a different political frame of reference.

She said;

Last year, at a joint session by the UN Working Group on Business and Human Rights, the UN special rapporteur on human rights defenders and civil society organisations raised awareness of SLAPPs as a global problem and concluded that immediate action by states and business actors is needed to stop their use 'against people who are bravely and legitimately speaking out against injustice in the context of business operations'.

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Jaramillo says these sorts of legal challenges jeopardize a fast and just transition to renewable energy. "Environmental, land rights, climate and labour rights defenders - the very people on the front lines of driving a just transition - are under attack because they are raising concerns about business actions harmful to human rights and the environment."

Jaramillo adds that there is a concerning lack of understanding by the business community of the crucial role human rights defenders play in driving that just transition:

According to Kusari, SLAPPs need to be countered at various levels, including via national and international laws, awareness campaigns and practical support for targets, such as legal and financial aid.

Public interest

A number of countries outside the United States have implemented laws containing anti-SLAPP provisions over the past 15 years, including Canada and Australia.

Although a global hotspot for SLAPPs, Southeast Asia is also a pioneer for anti-SLAPP legislation. In Indonesia, for example, laws banned the filing of criminal or civil cases against persons 'struggling for a right to proper and healthy environment' and against journalists and informants providing information on deforestation. These have not been extensively used, although last year a group of Indonesian villagers protesting local pollution were acquitted of impersonating public officials.

In South Africa, the Constitutional Court recently recognised that a legal defence from SLAPPs exists, in the latest stage of a long-running dispute between a mining company and environmental campaigners. It also limited the damages that companies can claim.

No EU member state has yet enacted targeted rules to provide protection against SLAPPs. But civil society organisations have joined forces through the European Anti-SLAPP Coalition to push for action through European institutions and a proposed EU directive (an EU-level law that applies to all member states) is now in the works.

Introducing the bill, the EU's Vice-President for Values and Transparency, Věra Jourova, said it would "help to protect those who take risks and speak up when the public interest is at stake," including on "environmental and climate matters".

The European Commission has also adopted a recommendation to encourage member states to align their rules with the proposed EU law for domestic cases and in all proceedings, not just civil matters. And it calls on member states to take a range of other measures, such as training and awareness raising to help legal professionals and potential SLAPP targets to fight these kinds of lawsuits.

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Kusari says these are important initial steps:

New powers

Meanwhile, the UK Government recently announced plans to grant courts in England and Wales new powers to dismiss SLAPPs, following allegations that oligarchs close to Russian President Vladimir Putin are using expensive litigation in UK courts to shut down criticism and deter investigations into their affairs. In November, UK journalists, publishers and media lawyers sent a letter to UK Deputy Prime Minister Dominic Raab, urging the justice secretary to back a proposed anti-SLAPP law.

A prominent case referenced in the letter is a libel claim against former Financial Times journalist Tom Burgis by Kazakh mining conglomerate Eurasian Natural Resources Corporation. The lawsuit against Burgis was thrown out of court earlier this year. The case was described as a SLAPP last year by 15 civil society organisations, including freedom of expression group PEN International and corporate human rights organisation R.A.I.D.

Europe is not the only place where environmental activists are finding common ground with free speech advocates to try to stem the tide of SLAPPs.

In South Africa, civil society free speech campaign Asina Loyiko was set up in response to what it described as SLAPP suits brought by Australian mining company Mineral Resources Commodities and its South African subsidiary, Mineral Sands Resources, against environmental defenders, lawyers and activists.

Growing network

Back in Kosovo, several months after she was sued, Loshaj says KelKos was "all of a sudden" given permits to operate. She subsequently took the environmental regulator that issued the permits to court, arguing that they had not been granted properly.

The court sided with her and the ensuing appeals took the case all the way to Kosovo's Supreme Court. Last October, the Supreme Court temporarily suspended the company's permits and ordered it to stop operating hydropower plants in Decan.

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The weekend that the Supreme Court temporarily suspended KelKos' permits, the company dropped its defamation lawsuit against Loshaj, who said:

In response to questions from DeSmog, Kelag spokesperson Stocker said the company takes Loshaj's accusations "very seriously". But he denied it was responsible for all the environmental damage in Decan - calling her claim that the company did not follow water flow rules "another false allegation". Stocker also said KelKos was in possession of valid permissions when building the hydropower plants and "always followed instructions rendered by the authorities of Kosovo".

Kelag maintains that Loshaj made "several false accusations and incorrect statements" but Stocker told DeSmog the case against her was discontinued as "we believe in constructive talks with the people concerned and hope that we can find solutions in a mutually acceptable way".

The temporary suspension of the hydropower plants has since been overruled by Kosovo's Constitutional Court and Kelag confirmed that they are back up and running again. Loshaj's legal team is reviewing the ruling and considering potential next steps but expects the case to be returned to the lower court to rule on whether the permits are legal.

If anything, the SLAPP seems to have inspired Loshaj to keep on campaigning and she has helped build a network of environmental activists across Kosovo. She was motivated, she says, by anger and also a love of her town.

She added:

Isabella Kaminski is a UK-based freelance journalist specialising in the environment and climate change.

This article was originally published by DeSmog on 20 December 2021 under the title 'Environmental Activists Fight Back as Companies Resort to "Lawfare" to Quash Criticism'.

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