Should a corporate bully be allowed to silence criticism using the courts? Next week’s Gunns 20 trial should be watched closely by anyone who cares about free speech, writes Liesel Rickarby.
After more than five years, the Gunns 20 case finally goes to trial next week. It will be the biggest case of its type in Australian history and is an excellent example of a SLAPP suit, or Strategic Litigation Against Public Participation.
In December 2004, Tasmanian logging company Gunns issued 20 writs against three environmental organisations and 17 individuals, totalling almost $6.4 million. The 20 defendants included the Wilderness Society and its executives, Senator Bob Brown, Tasmanian Greens leader Peg Putt, two filmmakers, two university students, a doctor, a dentist and a grandmother who builds kitchens. You can read about the background to the case here and here.
Bob Brown was being sued for writing to Japanese paper companies (at the time 80 per cent of Tasmania’s woodchip exports went to Japanese paper production) and disputing Gunns claims that their woodchips predominantly come from plantations rather than native forest.
Dr Frank Nicklason was being sued for writing about the possible health effects of decomposing wood chips in Gunns’ export chip piles.
Adam Burling, along with the kitchen-building grandmother Lu Geraghty, were accused of orchestrating a blockade to stop logging in their community.
After much legal wrangling and millions of dollars in costs, cases against 16 of the defendants were dropped. The trial for the remaining four — Burling, Geraghty, Brian Dimmick and the Huon Valley Environment Centre — will begin in the Victorian Supreme Court on Tuesday.
When corporations take legal action against their detractors, the effects often reach far beyond those sued. The spectre of well-financed litigation is enough to strike fear into the hearts of those who might otherwise add their voices to the chorus of critics. Individuals and whole communities can be silenced, fearing they could be next. For the defendants themselves, time and resources are channelled into their case — and away from their initial concern of public interest.
Legal co-ordinator for the Wilderness Society and author of Gagged, The Gunns 20 and other law suits, Greg Ogle explains the ramifications of the Gunns 20 case:
“There were certainly examples of people pulling out of activity protesting Gunns’ pulp mill, and of others being afraid even to put submissions into government assessment processes … The litigation also impacted on public debate simply because of the many hours required to address the case. These were hours which were not available for the defendants to spend on the protection of Tasmania’s forests.”
The Gunns 20 case sent a chill around the island state and across Bass Strait. With what might be termed “instructive” timing, Gunns announced their proposal for a $2.5 billion pulp mill in the Tamar Valley north of Launceston just days after issuing the 20 writs.
Although the north of the Tamar is no stranger to industry, the valley is also populated by viticulturists who produce 40 per cent of Tasmania’s cool climate wines. Looking at how the wine industry has responded to the pulp mill — and to the Gunns 20 case — illustrates the ways in which SLAPP suits reach beyond particular defendants.
Wine and tourism are the Tamar’s chief industries: the 58 kilometre Tamar Valley Wine Route boasts 19 boutique wineries and the Valley has over 40 in total. The area’s mainly owner-operated and family-based tourist ventures — restaurants, cafes, bed and breakfast accommodation — are worth approximately $300 million annually. These businesses are certainly likely to register the effects of the mill.
It is projected that the mill will pump some 30 billion litres of liquid effluent into Bass Strait each year. And daily, it will release 300 kilograms of particulate air pollution into the Tamar Valley — an output which will include so-called “non condensable gases”, which human nostrils up to 55 kilometres away may mistake for the aroma of rotten eggs. The Tasmanian Government has helpfully exempted the pulp mill from adhering to national air pollution limits.
Aghast at the potential loss of so much fine wine, the Victorian Sommeliers Association (VSA) wrote to its members about the proposed pulp mill. The VSA also considered orchestrating a boycott against Gunns; alongside their timber interests Gunns also has a stake in Tasmania’s wine industry, owning the labels Tamar Ridge and Devil’s Corner. However, the VSA decided against the boycott. President Ben Edwards said the decision was based less on the likelihood of losing a court case against Gunns, and more on the prospect of being dragged through the courts for years, regardless of the outcome. Edwards said the decision was directly influenced by the Gunns 20 case.
Another example of the chilling effects of the Gunns 20 case could be evidenced in the pages of the University of Tasmania’s student magazine, Togatus. While the folks who advise us on what red to drink with our tagine may not be renowned for their political activism, student-run publications have a reputation for just that.
When Wilderness Society volunteer Paul Oosting submitted an article likening Gunn’s description of the pulp mill as “world’s best practice” to Orwell’s ‘newspeak’, Togatus refused to publish it for fear of retaliatory litigation.
Oosting eventually published his pulp mill article on the Tasmanian Times website. He also got the job of pulp mill campaigner for the Wilderness Society and can be heard frequently on Tasmanian radio vehemently criticising the mill and its owners. Even so, Greg Ogle describes the Togatus episode as bringing home to him the adverse effect the case has had on free speech.
The Gunns 20 case is the most high profile of a new breed of lawsuits, which direct industrial and commercial law at environmental and community protest, using charges of ‘conspiracy to injure’, ‘hindering trade’ and ‘unlawfully interfering with trade and business’. While some of the alleged actions in the case involved a direct stopping of business, most of their case against the Wilderness Society and Greens politicians were about broader political processes like the lobbying of business and government or making statements to the media.
Ogle argues that law reform, along the lines of anti-SLAPP legislation in the US, is needed to protect the public’s right to participate in political debate and protest: “Legislation must be framed around a positive right to public participation, not around a question of whether a case is an abuse of process, although outlawing such abuses may be part of the legislation. The right to public participation must be paramount.”
The Gunns 20 case signals the urgent need for Australian legislators to introduce measures to protect community activism from the wrath of corporations scorned.
This is the first in a two-part series on the Gunns 20 and the legal issues surrounding public protest and advocacy. Tomorrow, Liesel will look at the history of Strategic Litigation Against Public Participation suits.
01/28/2010 – 13:48