I only recently became aware of the term “SLAPP lawsuits”, which corrupt companies use to silence critics, because it is about to be tested in the NSW Supreme Court on the 4th of August in the Capilano Honey and Ben McKee v Simon Mulvany defamation case.
It is not just companies with low profiles who use SLAPP lawsuits. McDonalds tried to silence critics in England in 1997 in what became known as the McLibel Trial where they were trying to conceal their grubby corporate culture of cruelty to animals, exploiting children and underpaying staff. (Click here to read more)
When I looked at the definition and characteristics of SLAPP lawsuits I realized that is exactly the type of court cases that Kerry Stokes has been running against myself and others. In fact I suspect Kerry Stokes and Seven West Media are the biggest SLAPP lawsuit abusers in Australia.
What are Slapp Lawsuits? Strategic lawsuit against public participation.
A strategic lawsuit against public participation (SLAPP) is a lawsuit that is intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition. Such lawsuits have been made illegal in many jurisdictions on the grounds that they impede freedom of speech.
The typical SLAPP plaintiff does not normally expect to win the lawsuit. The plaintiff’s goals are accomplished if the defendant succumbs to fear, intimidation, mounting legal costs or simple exhaustion and abandons the criticism. In some cases, repeated frivolous litigation against a defendant may raise the cost of directors and officers liability insurance for that party, interfering with an organization’s ability to operate. A SLAPP may also intimidate others from participating in the debate. A SLAPP is often preceded by a legal threat.
There is a difficulty in that plaintiffs do not present themselves to the Court admitting that their intent is to censor, intimidate or silence their critics. Hence, the difficulty in drafting SLAPP legislation, and in applying it, is to craft an approach which affords an early termination to invalid abusive suits, without denying a legitimate day in court to valid good faith claims. Thus, anti-SLAPP laws target tactics used by SLAPP plaintiffs. Common anti-SLAPP laws include measures such as penalties for plaintiffs who file lawsuits ruled frivolous and special procedures where a defendant may ask a judge to consider that a lawsuit is a SLAPP (and usually subsequently dismiss the suit).
Anti-SLAPP laws occasionally come under criticism from those who believe that there should not be barriers to the right to petition for those who sincerely believe they have been wronged, regardless of ulterior motives. Nonetheless, anti-SLAPP laws are generally considered to have a favorable effect, and many lawyers have fought to enact stronger laws protecting against SLAPPs.
SLAPPs take various forms. The most common used to be a civil suit for defamation, which in the English common law tradition was a tort. The common law of libeldates to the early 17th century and (unusual in English law) is reverse onus, meaning, once someone alleges a statement is libelous, the burden was on the defendant to prove that it is not. In England and Wales, the Defamation Act 2013 removed most of the uses of defamation as a SLAPP by requiring the proof of special damage. Various abusive uses of this law including political libel (criticism of the political actions or views of others) have ceased to exist in most places, but persist in some jurisdictions (notably British Columbia and Ontario) where political views can be held as defamatory.
A common feature of SLAPPs is forum shopping, wherein plaintiffs find courts that are more favourable towards the claims to be brought than the court in which the defendant (or sometimes plaintiffs) live.
Other widely mentioned elements of a SLAPP are the actual effectiveness at silencing critics, the timing of the suit, inclusion of extra or spurious defendants (such as relatives or hosts of legitimate defendants), inclusion of plaintiffs with no real claim (such as corporations that are affiliated with legitimate plaintiffs), making claims that are very difficult to disprove or rely on no written record, ambiguous or deliberately mangled wording that lets plaintiffs make spurious allegations without fear of perjury, refusal to consider any settlement (or none other than cash), characterization of all offers to settle as insincere, extensive and unnecessary demands for discovery, attempts to identify anonymous or pseudonymous critics, appeals on minor points of law, demands for broad rulings when appeal is accepted on such minor points of law, and attempts to run up defendants’ costs even if this clearly costs more to the plaintiffs.
Several jurisdictions have passed anti-SLAPP laws, designed to quickly remove cases out of court. In many cases, the plaintiff is also required to pay a penalty for bringing the case, known as a SLAPP-back.
Australian SLAPP laws
In the Australian Capital Territory, the Protection of Public Participation Act 2008 protects conduct intended to influence public opinion or promote or further action in relation to an issue of public interest. A party starting or maintaining a proceeding against a defendant for an improper purpose may be ordered to pay a financial penalty to the Territory. (Click here to read more)
Judges who assist – Bruce McWilliam
To run SLAPP lawsuits it generally requires judges to aid and abet the litigants. Bruce McWilliam heads up the legal team at Seven West Media who have been running several SLAPP lawsuits against me over the last 3 years. On Saturday (8/7/17) Bruce McWilliam bragged about his relationship with one judge in an interview with Fairfax Media as per the screen shot below:
The same story spoke about Bruce McWilliam’s and his wife’s close relationship with Justice John Sackar who will hear the Seven West Media v Amber Harrison matter on Monday. The article says:
“McWilliam’s connections now spread so wide that he is all but tripping over them. In April, for instance, it was disclosed that the judge hearing the Amber Harrison case in the Supreme Court, Justice John Sackar, had known McWilliam for years and done academic research with McWilliam’s wife, a mediation lawyer.” (Click here to read more)
Having judicial connections comes in very handy when running multiple SLAPP lawsuits to silence critics and whistleblowers.
Gunns SLAPP lawsuit against 20 people
Another well known SLAPP lawsuit was by Gunns which reminds me a lot of how Seven West Media are dealing with social media users. The SMH wrote about the Gunns SLAPP lawsuit in 2011 and said:
THE first time Alec Marr was arrested in front of a Gunns bulldozer was in 1987, as he protested against the logging of Tasmania’s Lemonthyme forest. Gunns was then, in his words, a small company with a bad attitude.
Seventeen years later, Marr was served with a writ as lead defendant in Gunns v Marr, Australia’s biggest strategic lawsuit against public participation, or SLAPP suit. Gunns was then a billion-dollar forestry organisation run by powerful Tasmanian businessman John Gay. It was determined to destroy its opposition, seeking $6.4 million in damages from people who could not afford to pay.
Writs were issued to the so-called ”Gunns 20” shortly before Christmas in 2004. Two days later, Gunns revealed plans to build a $2.2 billion pulp mill at Bell Bay in the Tamar Valley. The lawsuit designed to crush opponents of the mill would prove to be Gunns’ grave error, stirring outrage that would shatter the company’s legitimacy here and abroad.
Gunns even sued an elected politician, Australian Greens leader Bob Brown. ”I knew better than to call the lawyers,” says Brown. ”The first thing I did was to call a press conference. Within 24 hours we had a candlelight vigil for democracy, in Hobart. It was like the Prague Spring.”
For corporate Australia, Gunns would become a case study in how not to deal with community protest. Far from being cowed, Marr and his colleagues ramped up an unprecedented campaign, targeting Gunns’ bankers and shareholders, Japanese customers and European partners, and ultimately bringing one of Australia’s most controversial companies to its knees, slashing its market value and ousting divisive chairman Gay. (Click here to read more)
If I was a shareholder in the Kerry Stokes’ companies Seven West Media and Capilano Honey I would be selling now as I have no doubt their share prices will head the same way as Gunns and for the same reason of running dodgy SLAPP lawsuits.
Whats happening now with SLAPP lawsuits is not uncommon. The website New Matilda wrote in 2010:
“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.” (Click here to read more)
The big difference now is that small websites and bloggers are starting to grow to a size where they can have impact. And that impact is starting to be felt by the companies instituting SLAPP lawsuits so those lawsuits will backfire just like what happened with Gunns a few years ago.
If you have time make sure you go and support Simon Mulvany who publishes the Save The Bees Facebook page at his hearing on the 4th of August in the NSW Supreme Court. It is a hearing to have the suppression orders against him lifted and in effect have the claim against him buy Capilano Honey and their CEO Ben McKee be declared a SLAPP lawsuit.
If you know of other companies using SLAPP lawsuits please add to the comment section below as I will keep investigating and reporting on this issue as SLAPP lawsuits undermines free speech.
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