A SLAPP In The Face For Free Speech

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UPDATE: Since this article was published, the case against the Gunns 20 has been dropped. Gunns Ltd has agreed to pay the costs of the four remaining defendents, and revealed that the case has cost the company $2.8 million in legal fees over more than five years.    

In 1997 McDonald’s served British activists Helen Steel and David Morris with a defamation writ for handing out a leaflet accusing the fast food chain of poor environmental, employment and social practices. Free speech advocates around the world were outraged.

One of the responses to what became known as the McLibel case took place in Wollongong in 1997. Two young environmentalists crashed a publicity event at a McDonald’s outlet in Wollongong Mall, where a crowd was gathered to eat free hamburgers while being serenaded by Ronald McDonald. Holding placards, Adam Burling and Jenny Weber rushed the stage and interrupted the performance. If being pelted with free hamburgers is anything to go by, their act of solidarity with Steel and Morris was not appreciated by the crowd.

Although Adam Burling knew plenty about the McLibel case, he wasn’t aware that it was a prime example of a SLAPP (Strategic Litigation Against Public Participation) suit, an increasingly common tool used by corporations against their detractors, nor could he have imagined that he would one day be a defendant in Australia’s biggest SLAPP suit, Gunns Limited v Marr and others, popularly known as the Gunns 20 case.

The term "Strategic Litigation Against Public Participation" was coined by University of Denver academics Penelope Canan and George Pring. To qualify as a SLAPP, they write in their book Getting Sued for Speaking Out, a lawsuit must "involve communications made to influence a governmental action or outcome, which secondarily, resulted in a civil complaint or counterclaim filed against non-government individuals or organisations on a substantive issue of some public interest or social significance".

SLAPPs transform political or social disputes in ways that advantage filers and disadvantage defendants. They turn the conduct of targets like the Gunns 20 into legal points like business interference or conspiracy, essentially reconfiguring political controversies as legal debates.

Greg Ogle, legal co-ordinator for the Wilderness Society and author of Gagged: The Gunns 20 and other law suits, has defended three sets of SLAPP defendants, including the Hindmarsh Island campaigners fighting to protect the site of secret women’s business who were sued by developers, and Animal Liberation in South Australia, who were sued for a raid/rescue operation at a battery farm. In Canada, Coca-Cola is currently threatening legal action if a Montreal film festival screens The Coca-Cola Case, a new film critical of the company’s labour practices. In effect, as Canan and Pring demonstrate, "SLAPPs are filed by one side of a public, political dispute to punish or prevent opposing points of view."

SLAPPs shift disputes from public fora, where they can be politically resolved, to private judicial environments in which only the technicalities of a matter can be addressed. The issue at stake morphs from the original concern into the plaintiff’s claimed injuries. These transformations suppress the issue of who is right in the underlying dispute.

Due to the prohibitive costs of mounting a defence, defendants often agree to settle their cases out of court, undertaking agreements to be silent on the issue or to publicly retract their criticisms. If they lose their case, they may be forcibly silenced by an injunction order preventing them from speaking against, or taking protest action against, the plaintiff.

Notwithstanding the significance of these outcomes, the fallout from a SLAPP is what really kills civic involvement. This second wave of silencing, termed the "chilling effect" by Canan and Pring, is the defining feature of SLAPP suits. In my article on the upcoming trial of the Gunns 20 yesterday, I outlined some of the specific chills generated by the case.

"Chilling" describes the broader consequences, and, some claim, the chief purpose of a SLAPP suit. Like Arnold Schwarzenegger’s Mr Freeze character in one of the more forgettable episodes of the Batman franchise, SLAPP suits freeze public political participation. Not to impugn the Governator: Schwarzenegger strengthened California’s already strong anti-SLAPP legislation in 2006 by signing the Malicious Prosecution Bill, which allows SLAPP defendants to file "SLAPPback" suits.

The chilling effect can be direct and immediate as defendants’ time and resources are channelled into fighting the lawsuit — and diverted from their original act of public participation.

Most importantly, however, the chilling effect refers to the overall silencing of dissent in a community, as individuals and groups become afraid to voice their opinions for fear of being sued.

One of the bigger chills in Australian SLAPP history followed the case of Williams v Lewis in 1997.

When comments by Melbourne University architecture lecturer Dr Miles Lewis which were critical of property developer Lloyd Williams were quoted in The Age in relation to the construction of the Melbourne Casino, retribution in the form of a lawsuit was swift. Williams v Lewis had enormous repercussions for academic freedom in Australia and, in effect, gagged academics from commenting on controversial issues in their respective fields.

When asked by a journalist from The Age what he thought of Williams, Lewis referred to one of Williams’ previous projects, a South Yarra apartment building constructed without the necessary permits. He labelled the developer "a cowboy … who doesn’t take any notice of the law". Lewis, presumably referring to the sections of the casino constructed without approval, went on, "I’m not convinced he’s changed. His track record shows that."

With smaller fish to fry, Williams’ lawyers bypassed Fairfax and promptly served Lewis with a defamation writ, as Brian Walters recounts in his book Slapping On The Writs. Lewis was left high and dry by both Fairfax, who provided him with no support for over a year, and by Melbourne University. Ordinarily universities indemnify academic staff when they speak on matters related to their research — but this was not the case for Dr Lewis. The National Tertiary Education Union’s reaction to the suit was to place a ban on academics speaking to the media in their university capacity.

With the casino all but completed, the case was settled with an apology in 1998. The apology was not an apology per se but rather an apology for what the journalist said might be inferred from the South Yarra scenario. Lewis did not retract the statement that Williams was a "cowboy … with no regard for the law".

Walters describes the aftermath of the case in terms of its chilling effect:

"The proceedings were intimidating, and community debate was suppressed. And the timing of this case was instructive. The writ was issued within days, but not hurried to a hearing. It continued to hover over the debate concerning the casino until there was nothing left to debate, because the casino was already a fact of life."

Greg Ogle argues that law reform, like the anti-SLAPP legislation in place in the US, is needed to protect the public’s right to participate in political debate and protest.

Without legislated protection it is likely there will be more cases similar to the Gunns 20. In fact, as controversy continued in Tasmania’s forests, Gunns sued 13 more activists for protest action at their Triabunna woodchip mill in 2008.

The original writ, against those who became known as the Triabunna 13, included a claim for damages based on the purpose of the defendants’ actions being to "communicate their political beliefs".

In a hearing of the Triabunna case, the Associate Judge of the Supreme Court of Tasmania, Justice Andrew Holt, asked Gunns’ lawyer: "Have you ever heard of the McLibel trial?"

It may have been a pertinent question. The McLibel defendants, Helen Steel and David Morris, a gardener and a postal worker, having nothing to lose, took on the biggest fast food chain in the world. In English libel law the burden of proof lies on the defendants so Morris and Steel had to prove the contested statements in their leaflet were true, effectively putting McDonald’s on trial.

At 314 days in court, the McLibel trial was the longest in English legal history. It saw Steel and Morris march out a massive array of witnesses, including academics, doctors, ex-employees, farmers, environmentalists and an ex-Ronald McDonald clown to prove their claims against McDonald’s.

The court found that the defendants had shown that McDonald’s "exploit children" with their advertising, falsely advertise their food as nutritious, risk the health of their long-term regular customers, are "culpably responsible" for cruelty to animals reared for their products, are "strongly antipathetic" to unions and pay their workers low wages.

Morris and Steel, who had been denied legal aid, then took the British Government to the European Court of Human Rights, claiming they were denied a fair trial. The court ruled that the case had breached their rights to freedom of expression and a fair trial.

The Triabunna 13, most of whom are students or casually employed — with no assets to speak of, don’t have anything to lose either and they have launched a counter-suit against Gunns.

Gunns 20 defendants and alumni have congratulated the 13 and wished them well. Senator Bob Brown observed that they were unlikely to be silenced. "I don’t think they’re going to go away with their tail between their legs just because [Gunns CEO] John Gay and his company issues another writ." He is probably right.

New Matilda

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