SLAPPs -- Strategic Lawsuits Against Public Participation
It is my observation that defamation claims made against the Nimbin GoodTimes and myself in 2017, and still continuing in 2020 with contempt charges against me, are an abuse of legal process known as a “SLAPP”.
In 1984, George W. Pring and Penelope Canan studied "SLAPPs", “Strategic Lawsuits Against Public Participation” at the University of Denver. They found that SLAPPs undermine the right to free speech by setting up an unfair Goliath v David battle between private and public interests, in which an overwhelming threat of litigation is used maliciously to silence critics and prevent free speech on issues of public concern.
Political activists and environmental defenders, civic and social organizations and public interest groups are often “slapped” with malice to prevent them exposing vested economic interests that trample pubic concerns.
In SLAPP suits, where legitimate dissent obstructs a litigant’s lust for profit, plaintiffs improperly use the courts to bulldoze private interests over public concerns by intimidation.
Fear alone is usually enough to force acquiescence to the litigant’s agenda of injustice. In most cases power and profit defeat truth and justice, without ever going to trial.
One Judge has described SLAPPs as: “suits without substantial merit, brought by private interests to stop citizens exercising political rights or punish them for having done so.”
I was targeted in 2017 with costly, traumatising litigation threatening damages and costs of millions, as the plaintiffs flaunted their presumption that the courts would favour the more profitable. This abuse of legal process was clearly intended to intimidate and also to discourage similar attempts by others to expose an alleged land-share fraud.
The defamation claim was brought against me for publishing details of loss of my inheritance in the plaintiffs' land-share venture. It was heard in NSW Supreme Court for six days in August - October 2019.
After reserving judgement for six months, in April 2020, Judge Fagan ruled against me, deciding that the plaintiffs' failure to fulfil marketing representations was a consequence of incompetence, not fraud, as I had alleged.
I was ordered to pay $400,000 damages plus legal costs, about $1 million.
Permanent injunctions followed to protect the plaintiffs from repetition of defamatory imputations of dishonourable conduct.
When I continued to publish information about the expansion of the land-share scheme and my ongoing quest for justice, the plaintiffs brought another SLAPP action against me with charges of contempt of court.
They request that the alleged contempt is deemed contumacious - which makes it a criminal offence, punishable by imprisonment.
In response to the claim, I have initiated an application to move the controversy to the High Court because of constitutional matters involved in the suppression of discussion about issues of public concern, including the current sale of "tribal title" to properties that were paid for by myself and others, with no consideration in return.
Even stone-slinging shepherds and disenfranchised investors have a natural right to justice and the ability to bite-back with truth.
The power of Goliath in this case was the plaintiffs' assumed right to profit from sale of home-sites located on land where multiple occupancy dwelling is not a permitted use of the land, and their assumed right to use the power of the courts to intimidate investors who were disenfranchised without restitution.
The SLAPPs study shows that those filing malicious defamation claims presumed the courts would favour the private economic interests of the prosperous over the public concerns of the impecunious:
"The idea is that because a business has money at stake, business should receive priority over civic, communal opposition.”
Research by the Political Litigation Project at the University of Denver reveals how SLAPPs are used as an effective bludgeon to traumatize and silence opponents by causing an intimidating fear of crippling costs, damages and loss of reputation.
The best known SLAPP was the "mad-cow case" when television talk-show host Oprah Winfrey was accused of violating "veggie-libel laws" that give foods legal rights against defamation.
Following an April 1996 Oprah show discussing the dangers of mad cow disease, cattle ranchers blamed Oprah for sending the beef market into a spin.
The US National Cattlemen's Beef Association charged Oprah Winfrey, her production company and her guest, a Humane Society official, with defaming beef, claiming more than $12 million in damages.
Oprah won the suit saying, "Free speech is not only alive, it rocks...I refuse to be muzzled!"
"I refuse to be muzzled!"
In Australia, defamation law is extremely hostile to free speech.
With the exception of Korea and Australia, defamation law retains the basic principles of common law, defining defamation as publication of FALSE imputation by which a person’s reputation or profession is likely to be injured, or which may cause a person to be shunned, ridiculed or despised by others.
In most nations across the world, citizens have a legal right to publish truth, to provide accurate information and discuss honest opinions in the public interest, but not in Australia.
The protection of free speech in Australia is embodied in the Commonwealth Constitution, which, for the legitimate functioning of representative government, presumes that all citizens have the ability to freely communicate their views.
The protection of free speech in Australia is embodied in the Commonwealth Constitution, which, for the legitimate functioning of representative government, presumes that all citizens have the ability to freely communicate their views.
But with no Bill of Rights protecting free speech, the result is often malicious prosecution and intimidation of social justice advocates by more powerful interests.
In Australia, besides using defamation laws to hobble opponents, SLAPPs litigants have also used the Trade Practices Act.
In March 1991 Greenpeace tried to protect the breeding and calving grounds of the Southern Right Whale in Victorian waters that were targeted with seismic testing by BHP Petroleum. To stop the activists, BHP SLAPPed Greenpeace with damages amounting to millions. After successfully intimidating their opponents, BHP withdrew charges.
Michael Bachelard in the Sydney Morning Herald, “Free Speech the Loser in Australia's Defamation Bonanza”:
“Australia's punishing defamation laws have made Sydney the libel capital of the world, and people posting on Facebook and in blogs are the latest target for expensive legal action and threats.
Defending a court action for defamation costs between $100,000 and $1.1 million. Damages can also be substantial. A WA court last year awarded the largest ever Australian payout in a defamation case brought by three people against a blogger of $700,000.
Defamation lawyer Matt Collins, QC, said Australia's laws were now "a Frankenstein's monster" of rules and exclusions, and prevented good journalism from investigative reporters. "There are important, high-profile stories that don't get told because of the chilling effect of defamation law, and the high cost of actions”.
“Richard Ackland of the Gazette of Law and Journalism, described it as ‘a racket’.”
Obviously, fraudsters are angered by the potentially adverse impact on their pockets resulting from publication of truth about dishonest ventures. But if abuse of process to protect profits over people became normalised, the legal justice system would become the problem not the solution; a cause of injustice rather than a relief from injustice.
In a review of the book, SLAPPs: Getting Sued for Speaking Out, Brian Martin says:
“George W. Pring is a law professor and Penelope Canan a sociology professor at the University of Denver. In the early 1980s they realised that there was an epidemic of legal actions whose purpose was to intimidate citizens. These suits had little chance of success and indeed few of them succeeded in court. But they still worked for the filers, since even when they lost their cases, they scared their opponents and achieved their goals.”
In a review of the book, SLAPPs: Getting Sued for Speaking Out, Brian Martin says:
“George W. Pring is a law professor and Penelope Canan a sociology professor at the University of Denver. In the early 1980s they realised that there was an epidemic of legal actions whose purpose was to intimidate citizens. These suits had little chance of success and indeed few of them succeeded in court. But they still worked for the filers, since even when they lost their cases, they scared their opponents and achieved their goals.”
When SLAPPs litigants are opposed with a full hearing to examine the veracity of their claims, only 10% successfully win their case. It doesn’t matter.
Litigants protecting private greed against public interest drag out costly quarrels in the courts for many years, not motivated by the unlikely prospect of winning and claiming damages, but simply to SLAPP their opponents with punishment until they capitulate.
SLAPPs are common in America, where anti-SLAPP legislation has been enacted in some states, but they’re infrequent in Australia and are mostly “LULUs”, a type of litigation dealing with "locally unwanted land uses” in which defamation charges are brought with malicious intent to silence effective environmental defenders.
The targets of SLAPP litigation are generally not professional activists or radical environmentalists. They are mostly organisers of small groups, or individuals who are seen as trouble makers because they advocate protection of their local community from private greed.
A precedent was set in Helensburg in 1986, when Protection Society activists were slapped for opposing a property developer’s environmentally damaging rural rezoning plan. Donohoe and Tapsell were charged with destroying the developers’ commercial interests.
In another case, property developers used a SLAPP against activists who opposed them on environmental protection issues at Hinchinbrook. Over 100 people protested extensive mangrove clearing by the developers, but only one woman aged 67 was slapped, causing her great trauma and expense. As a result the activists stopped their campaign, then the developers withdrew their charges.
With a similar flourish of characteristic malice,
Adding to the intimidation of this SLAPP, the plaintiffs were maliciously defaming me in false narratives sworn as truth and published online. The irony is that the defamer charged the defamed with defamation of the defamer!
Bite Back
"Speak Out -- And When You're Sued Just Bite Back”. This is the inspiring title of Brian Martin’s review of the book, “SLAPPs: Getting Sued for Speaking Out”. Published in The Republican, August 1997, the review concludes:
“The frightening reality is that SLAPPs work in scaring most targets, who become less active than before… A SLAPP essentially takes a political or social issue in which the focus is on the behaviour of a company or individual and transforms it into a private legal issue in which the focus is on the behaviour of the person who spoke out. By labelling such a suit as a SLAPP, the political dimension is highlighted.”
The book by Pring and Canan has good advice on cross-claiming against the SLAPPer with the so-called "SLAPP-back" charge of malicious prosecution. SLAPP-back empowers those who are being slapped to overcome fear by standing in their right to free speech, and the right to expose scurrilous profiteering in the public interest.
Screen-media is often used as a platform to exercise freedom of speech as a last resort in a quest for justice by those who have suffered abuse. But the same screen media is obviously used to even greater effect by the wealthy to protect their private privilege against public concern and outrage.
- Reinterpreting litigation as defense of their reputation, not suppression of free speech.
- Devaluation and denigration of the target.
- Misuse of the law as a means of attack.
- Intimidation and bribery.
- Cover-ups and gag clauses.
By flipping these techniques used by SLAPPs plaintiffs to inhibit public outrage, five effective steps can be taken to counter injustice:
- Interpret the action correctly as a violation of free speech.
- Validate the worth of the target.
- Disavow abuse of process in the courts as a means of imposing injustice.
- Refuse to be intimidated or bribed.
- Publicize the action.
In cases where defendants have countered intimidating litigation this way, it’s the reputation of the plaintiff that suffers most, as with the SLAPP-back by Channel Seven against John Marsden’s defamation SLAPP-suit, that damaged his personal reputation even more than before.
The famous McLibel case illustrates how corporate SLAPP suits can fail when they’re seen to oppressively violate popular interests. Litigation by McDonalds against a persistent public advocacy campaigner backfired when he used all five bite-back counter-measures to generate massive support. As a result, his website, mcspotlight.org, was accessed more than 184 million times during the litigation.
Reference
- Sharon Beder, 'SLAPPs: Strategic Lawsuits Against Public Participation', Current Affairs Bulletin, Vol. 72, No. 3, 1995
- George Pring and Penelope Canan, 'SLAPPs: Getting Sued for Speaking Out' (1996)
- Brian Martin, ‘Speak Out -- And When You're Sued Just Bite Back’, The Republican, August 1997
- Sue Curry Jansen and Brian Martin, 'Making Censorship Backfire' (2003)
- Sue Curry Jansen and Brian Martin, 'Exposing and Opposing Censorship: Backfire - Dynamics in Freedom-of-speech Struggles' (2004)
- Fiona J L Donson, ‘Legal Intimidation: A SLAPP in the Face of Democracy’ (2000)
- Seth Goodchild, 'Media Counteractions: Restoring the Balance to Modern Libel Law’ Georgetown Law Journal 315 (1986)
- SMH, Michael Bachelard, ‘Free Speech the Loser in Australia's Defamation Bonanza’ May 12, 2017
http://www.smh.com.au/national/investigations/free-speech-the-loser-in-australias-defamation-bonanza-20170511-gw2cnc.html
- The McLibel Trial Story McSpotlight (2004); mcspotlight.org/case/trial/story.html
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