SLAPPS explained : Melbourne Indymedia

Date: Thu, 16 Dec 2004

SLAPPs - Strategic Lawsuit(s) Against Public Participation are not new. In
fact they've been around for a couple of decades in the US. As we know, a
lot of good things have come out of the US....McDonalds, Pepsi, Kentucky
Fried Chicken, the B52 bomber, the first use of a nuclear weapons against
other humans. A whole range of good things.

Then there's my home state of Tassie. Well I reckon I'm one of the good
things to come out of there, along with my wife, Errol Flynn, David Boon,
Mary Donaldson and woodchips. Woodchips? Well that is Gunns' contribution
to the great exports from my home state.

I remember going with my dad, who was a builder, to the hardware store when
I was a kid. Gunns had an account open for my dad and I used to marvel at
how he could go in, load up the car with stuff, sign a bit of paper and
leave. Mum always had to pay for things when she went to the supermarket.
Back then, it seemed life was simpler. But times and have changed and now
Gunns is a company with a stranglehold on Tasmania's politicians and
unions. With a money value of over $A1 billion, Gunns is the most powerful
business on the Island. And power brings you influence. and when power and
influence don't work, you turn to the law.

Now you may be wondering how John Howard managed to become 'the workers
friend' during his visit to Tasmania in the run up to the election. How did
he get all those hardened truckies to turn up and cheer him on in
Launceston? Easy, Gunns told their drivers, through their union bosses,
that if they didn't turn up, they could forget coming to work the next day.
Who do you think it was that fed and watered all those thirsty boys that
afternoon? Well I can tell you it wasn't the Sallies.

Writing on the crikey.com website, Stephen Mayne notes that, "No single
company dominates another Australian jurisdiction quite like Gunns rules
the roost in Tasmania. Gunns shares have now risen by 8 per cent since
voters returned the Howard Government and this has added $94 million to its
(money) value in the eight trading days since the election."

Not only that, Mayne holds nothing back when he observes, "Much of this
value comes from the ability of Gunns to slaughter the mighty Tasmanian
forests with the express permission of Labor Premier Paul Lennon, his
like-minded Liberal mate in The Lodge and their thuggish mates in the CFMEU".

That is real power and influence. However, when it comes to silencing your
critics it can be very difficult to do so, even in a nation like ours that
has no enshrined freedom of speech in any federal or state Constitution. On
one level it must be comforting to Bob Brown, the Wilderness Society and
individuals like single mum of four, Lou Geraghty, when you get SLAPPed by
a company like Gunns. Comforting because when these types of companies
resort to these tactics its must only be because your words and actions are
beginning to bite into their ability to rape, pillage and destroy the
forests you so dearly love.

So what exactly is a SLAPP? They originated in the US in the 1980's when
companies intent on destroying Californian forests were hindered from their
destructive work by small, localised groups of protestors. A SLAPP is
defined as being ..."a civil court action which alleges that injury has
been caused by the efforts of individuals or non-government organisations
to influence government action on an issue of public interest or concern".

The strategy of using a SLAPP is to claim some ambit amount, say $6 million
dollars, and then serve a writ on the defendants. In the writ are, usually,
a series of conditions. One of which is to seek that the defendant make no
written or spoken comment on the matter over which they are being sued. In
short, the writ seeks to limit the ability of one side of a debate being
able to express their truly held, personal beliefs. In short, a SLAPP is a
fancy way of trying to get your opponents silenced. Well, at least it's a
little more humane than dragging them behind the shelter shed and belting
the crap out of them like the schoolyard bullies used to do. That or put a
bullet in their head. Whatever tactic is used, the idea is to shut your
critics up.

The main way this has been achieved, without resorting to violence, is
through the sheer threat of having a multimillion-dollar 'fine' and
potential civil action taken against you. The US experience has been that,
"The resulting effect "chills" public participation in, and open debate on,
important public issues. This chilling effect is not limited to the SLAPP
defendants - other people refrain from speaking out on issues of public
concern because they fear being sued for what they say". The interesting
thing and the most enlightening as to why these cases are brought, is to
look at the US where almost 80% of the SLAPP cases are won by those being
sued. This means only one thing. The SLAPP is not meant to do anything
other than to intimidate, waste time and, perhaps, win the company bringing

the case a little time to do some fancy PR and save a few percentage points
of their profit.

Sharon Beder, quoting a US judge, points out that, "The conceptual thread
that binds [SLAPPs] is that they are suits without substantial merit that
are brought by private interests to "stop citizens from exercising their
political rights or to punish them for having done so" . The longer the
litigation can be stretched out, the more litigation that can be churned,
the greater the expense that is inflicted and the closer the SLAPP filer
moves to success. The purpose of such gamesmanship ranges from simple
retribution for past activism to discouraging future activism".

So where are our government in all this? Where is the Tasmanian government
in all this? Where are the real friends of the workers in all this?

Well, as noted previously, the federal government - led by that great
defender of workers rights, John Howard - is happy to see Gunns profits go
through the roof. Paul Lennon may be about ready to say sorry - but not on
behalf of his fellow gubbas - but he is certainly not going to defend
environmentalists, or the resources they are trying to protect. As for the
Unions, Michael O'Connor from the CFMEU said on the ABC's PM program, and
he is speaking here on behalf of his union, that "what goes around, comes
around". He must think it is OK for his members to bash the bejesus out of
people while at the same time offering no support to those who are trying
to protect the longer term interests of forestry workers in that state.

So who will defend the SLAPP defendants? The only ones who can, if we want
to make sure this trashy US import doesn't take hold in this country, is
us. As Sharon Beder argues, "The development of a climate of fear that
dissuades citizens from speaking out on matters of public interest and
discourages activists from continuing the 'honourable tradition' of civil
disobedience is a threat to democracy and healthy political debate in this
country. Of course lawsuits are not the only way to dissuade healthy debate
on issues of importance. Litigation is, however, increasingly utilised to
intimidate people who cannot be influenced through pressure from employers
or professional associations.

We all know that those who sit in our houses of parliament do not represent
us. They have been chosen - hand picked by their parties - to tow the party
line through thick and thin. We also know that no matter how often a
company like Gunns tells us it values their workers, we know they value
their profits first. No matter how often they tell us they are doing their
best for us, unions are only as good and honest as the women and men who
lead them - and most are good and honest. But these things alone are not
enough. We must do more, collectively, to not only protect, support and
defend those who are currently in Gunns' sights, but we must also keep the
'honourable tradition' of civil disobedience alive, as we resist the
tyranny of power and influence. If we don't, we are potentially going to
find whole sections of our community SLAPPed into silence.

Sources.
Sharon Beder, "SLAPPs--Strategic Lawsuits Against Public Participation:
Coming to a Controversy Near You". From
http://www.uow.edu.au/arts/sts/sbeder/SLAPPS.html
California Anti-SLAPP Project, "Survival Guide for SLAPP Victims". From
http://www.casp.net/survival.html
Stephen Mayne, "Gunns, profits, mates and the National Trust". From
http://www.news-tasmania.com/gunns.htmlare not new. In
fact they've been around for a couple of decades in the US. As we know, a
lot of good things have come out of the US....McDonalds, Pepsi, Kentucky
Fried Chicken, the B52 bomber, the first use of a nuclear weapons against
other humans. A whole range of good things.

Thank you for a very articulate article Shane.

One of the biggest problems (or greatest successes, depending upon your perspecive) of our legal system is that you get all the justice you can afford.

In a game of poker between a multi-million dollar company and a community organisation, gee I wonder which side will be able to buy the pot.

Hi X,
spot on observation. The reason the corporation can launch such an attack is because they have the $$$.
Another respondent said I should have mentioned the McLibel case - which I should have perhaps.
Nonetheless, this noxious US import needs to be described, discussed and eradicated.
Shane
http://www.araustralia.org

its a cold hard simple fact that the odds are stacked in favour of the corporations in terms of getting a win based on bucks, but i think we need to consider that gunns may not actually want this case to see its way through the court system.
SLAPP suits are fantastic for silencing those targeted in the suit and disabling them from their normal activities. in this case activism and campaigning for the protection of tassies forests.
key point for this case, those in it and those supporting the 'Gunns 20" is that we dont let this issue go silent and keep the campaign to protect tassies forests going and gaining in strength. that will be the best way to defeat gunns and this rediculous SLAPP suit.

Yes its tragic it has taken them so long to do something like this. The great unwashed are only all to ready to get in their and blockade logging, damage or destroy equipment but at what cost. The break up of families and the loss of jobs for start.
Yeh its all fun and games when the ferals come out to play, blockading roads and locking onto equipment, no one gives a thought to the hardship you are causing the workers, no, everything is in the name of your own idealogical dreams.
Well this is one court case that has my whole hearted support, I just hope they win and financially cripple all those on the feral side.

Its about time. Should have happened years ago.

Power to the chainsaw.

Sharon Beder is amongst the speakers who will be talking at a SLAPPs Forum in Hobart soon:

When: 7.00pm, Monday 21st March, 2005
Where: Stanley Burbury Theatre,
University of Tasmania,
Churchill Ave, Sandy Bay

The other key note speaker is Brian Walters, whose book 'Slapping on the Writs; Defamation, Developers and Community Activism' is the best I've read on SLAPPs in Australia. Walters makes a strong case that maintaining a healthy democracy requires that we fix our legal system to balance things up a bit, and he's got the background to be specific on exactly what that entails.

Bob Brown of The Green Party and Simon Cocker of Unions Tasmania will also be speaking.

It promises to be a good night.

Not about ethics or giving an apology and doing the right thing...

Otherwise it would be short, sweet and leave lots of time to get down to the pub, eh!