Principle 16: State duties regarding liability and sanctions against protesters

1) Participation in a protest must never be the basis for suspicion of criminal activity. Any preventative arrests must be based on a reasonable suspicion that a criminal offence is planned.

2) Sanctions and the imposition of individual criminal and administrative liability regarding offences committed during protests must be applied in narrow and legally prescribed circumstances in line with the test set in Principle 4, upon the decision of an independent and impartial court, tribunal or other independent adjudicatory body in accordance with the rule of law.

3) Liability must always be personal, so that neither the organisers nor protesters are subjected to sanctions of any kind on the basis of acts committed by others.

4) Organisers and protesters must never be held liable or responsible for covering the costs of the provision of adequate security and safety measures, policing and first-aid services, and the costs of cleaning up after protests. In addition, they must not be required to obtain public-liability insurance for protests.

5) States must restrict the possibility of civil law remedies for silencing protesters and obstructing the work of human rights defenders in protests, including strategic litigation against public participation (SLAPP). States should adopt legislation that considers SLAPP to be an abuse of the judicial process which aims to restrict the legitimate exercise of the right to protest.

6) States must ensure that any legislation and practice concerning the possibility and application of injunctions against protests by public and private entities, in particular private companies, fully complies with restrictions set out in Principle 4, and also with the requirements of the due process of law. In particular, states should guarantee in their legislation and practice that:

a) Applications for injunctions relating to protest cannot be made without notice being given to protesters;

b) Injunctions can be granted only against identified individuals or groups and never contra mundum, i.e. against anyone with notice of injunction;

c) The extent, scope and duration of injunctions should always be carefully balanced so as to give meaningful effect to the right to protest. In determining whether issuing an injunction is necessary and proportionate under Principle 4, the courts or other independent adjudicatory bodies should consider:

i) Demonstrable evidence of a threat of actual and irreparable harm to the applicant if the injunction were not granted;

ii) The balance between this harm and the resulting restrictions on the right to protest as a result of granting the injunction;

iii) The probability of the applicant’s success on the merits of his/her claim; and

iv) The public interest in upholding the exercise of fundamental rights and maintaining the ability of individuals to exercise their right to protest.

d) Whether the costs of the proceedings and legal frees serve as a deterrent to protesters who seek the amendment or revocation of an injunction;

e) The adequacy of safeguards against abuse, including compensation paid to the injured party.

7. Any restrictions on protests that take the form of non-violent direct action should be based on an individualised assessment in line with the test set in Principle 4. In particular:

a) States should consider that some criminal offences, when applied to non-violent direct action, including but not limited to aggravated trespass or squatting, having a chilling effect on the right to protest. They should be replaced by civil or administrative remedies (where appropriate) in relation to protest;

b) Law enforcement should be allowed to exercise discretion in considering whether the strict application of criminal or administrative offences is an appropriate and proportionate form of restriction. Criminal law sanctions should be applied only against non-violent direct action in the most serious cases if less severe restrictions or measures could achieve the same effect;

c) Judicial authorities should consider the expressive nature of the conduct as a mitigating circumstance when applying sanctions; d) In determining the proportionality and necessity of restrictions, law enforcement and judicial authorities should employ public interest assessment, taking into account:

i) The importance of upholding the exercise of fundamental rights and maintaining the ability of individuals to enjoy their right to protest;

ii) The non-violent manner of the expressive conduct;

iii) The level of disruption of the expressive conduct;

iv) The type of targeted entity; and

v) The actual harm caused, with the deciding factor being not whether damage occurred, but whether it was unduly substantial. The test
of substantial damage should not be one of mere embarrassment, disruption or discomfort and should be considered in the context and the type of targeted entity;

vi) In cases concerning the use of digital technologies for expressive purposes, law enforcement and judicial authorities should also consider whether the targeted entity has any alternative means of communication and the extent to which the protest resulted in a violation of the right to freedom of expression of the targeted entity online.