SLAPP's in Australia

The phenomenon of lawsuits known as SLAPP's (Strategic Litigation Against Public Participation) which threaten the community's rights and ability to participate in public debate and political protest appears to be alive and well in Australia and in New Zealand.

The biggest example of a large corporation suing its opponents is Tasmanian timber giant Gunns Ltd suing twenty environmentalists in the Supreme Court in Victoria. However, before the Gunns 20 case, there were a range of cases over the Hindmarsh Island bridge in South Australia and over development on Hinchinbrook Island in Queensland, and a history of litigation documented initially by Sydney lawyer Bruce Donald.

Some within industry circles have urged companies to sue critics as part of winning a debate. A column published in the Australian Journal of Mining in August 1988 advised readers that "anti-mining opponents generally make outrageous and defamatory claims. A crowd stopper in a debate is the threat of legal action. For example: you know that statement is false. If you repeat that statement I will place the matter in my hands of my solicitors Messrs Sue, Grabbit and Run.' Don't bluff about legal matters. Be prepared to litigate."

Law reform
On April 3, 2006 The Wilderness Society, one of the defendants in the Gunns20 case, launched a major report Gunning for Change (pdf, 330KB) documenting a range of Australian law suits against public participation and calling for law reform to establish and protect the right to to public participation.

At the same time as The Wilderness Society report was launched, nearly 150 Australian lawyers signed up to a Public Interest Lawyers' Statement in Support of Public Participation Law Reform (pdf, 20KB). A group of 40 British lawyers have also issued a statement condemning the Gunns case and calling for law reform.

The Parliament of the ACT instituted hearings into a draft bill proposed by the Greens. In 2008, the ACT Legislative Assembly passed Australia's first anti-SLAPP legislation,. However, the Act was criticised as being weak and fatally flawed.

Australian and New Zealand Litigation Against Public Participation
The following is the beginning of a list of Australian and New Zealand cases where civil litigation has transformed public debate into legal cases. There are all sorts of definitions of SLAPP suits, but the fundamental issue is the chilling effect on free speech. Thus, the primary definition used in compiling the list is that the cases have had, or could reasonably be assumed to have had a chilling effect on the rights and ability of people to participate in public debate and political protest. The basic characteristics are:
 * one side of a public political debate has resorted to litigation
 * the case relates to the political dispute (not to some other issue)
 * the case is not about an internal organisational dispute (eg. one faction suing another) as these are not "public debate", although of course such suits could deter participation in public organisations
 * they are not counterclaims (because these are often legally necessary responses, not litigation against public participation)

The definition of public participation used is communication or conduct aimed at influencing public opinion, or promoting or furthering action by the public, a corporation or government body in relation to an issue of public interest, but does not include communication or conduct -
 * that contravenes an order of the court or is in contempt of court; or
 * that constitutes vilification based on race, sex, sexuality, ethnicity, nationality or creed; or
 * that causes or threatens to cause physical injury or damage to property; or
 * that constitutes trespasses upon a place of private residence; or
 * in an industrial dispute between an employer and their employees, former employees, contractors or agents, or
 * advertising goods or services for commercial purposes; or
 * that incites, or attempts to incite, others to communication or conduct that falls within the preceding paragraphs.

Thus, cases on the list refer to an act of public participation and the cases have had, or could reasonably be assumed to have had a chilling effect on public participation. The list may leave out some law suits that could be intentionally brought to silence political opponents (for example, if there is an allegation of property damage), and may include some cases which are brought to protect against arguably outrageous allegations or behaviour.

There are also admittedly many borderline cases: eg. Federal Ministers Tony Abbott & Peter Costello suing author Bob Ellis and Random House for defamation over comments about sex and politics, or suing an Animal Liberation activist for interference with trade for a publicity stunt putting pizza ham in the feed of sheep destined for export to the Middle East thus (allegedly) rendering them unmarketable. 

In building this list there is no claim that all the cases, or all claims in the cases are baseless, are brought for an improper purpose (though some may be) - it is the effect of the litigation on public participation which is crucial. Thus, it will be noted that not all of these cases involve large corporates suing poor activists, some are politicians suing eachother and some are public figures suing media organisations. Not all people suing media outlets (or politicians suing each other) will have the effect of chilling free speech, but a pattern of litigation may limit the media's engagement. Similarly, suing or threatening to sue the media for reporting the views or actions of a community group or campaigner, may cause concern to those who made the comment (knowing they could also be sued, or that they might be in future).

Stephen Mayne's Crikey.com.au also has a list of public figures who have resorted to defamation. Few of these cases involved community activism (the cases are largely involved individuals suing media outlets) and many would not relate to issues of “public participation”. However some of the case listed clearly chilled public debate by curtailing news reporting of the behaviour of those public figures. The list has an impressive 145 people – many of whom took multiple cases.

It is also not just legal cases which are a problem. The lawyer's letter threatening to sue may have the same effect on public participation. These threats are harder to document, but where they can be documented, they are included in the SLAPP listing.

The common feature of all these legal actions is that they all arise out of an act of public participation and the legal response may have the effect of chilling that debate.

If adding cases to this list, please state the name of the case (if known), the source of information and a brief summary describing the case.

The Cases

 * NSW SLAPPs
 * South Australian SLAPPs
 * Tasmanian SLAPPs
 * Victorian SLAPPs
 * Queensland SLAPPs
 * Western Australian SLAPPs
 * Australian Capital Territory SLAPPs
 * New Zealand SLAPPs

Other SourceWatch resources

 * SLAPP's
 * Gunns 20