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Companies suing critics. That's the real enemy of free speech Companies suing critics. That's the real enemy of free speech
(about 1 hour later)
There was moment in his political life when Philip Ruddock became a mini-hero. Within a short time of shifting from minister for immigration to attorney general in 2003, he set about giving a blood transfusion to an item that had long languished on the agenda of the standing committee of attorneys general – a uniform defamation law.There was moment in his political life when Philip Ruddock became a mini-hero. Within a short time of shifting from minister for immigration to attorney general in 2003, he set about giving a blood transfusion to an item that had long languished on the agenda of the standing committee of attorneys general – a uniform defamation law.
From the Pacific Solution to freeing up speech in one bound.From the Pacific Solution to freeing up speech in one bound.
It was a difficult process getting the states and territories to line up for a defamation regime that was principally the same across the wide brown land.It was a difficult process getting the states and territories to line up for a defamation regime that was principally the same across the wide brown land.
There were numerous holdout issues, one of which was whether companies should be permitted to sue for defamation. In NSW the Defamation Act of 2002 didn’t allow corporations to bring actions in defamation. In other states, they could. Also, the NSW court of appeal had decided that public bodies, like shire councils and government authorities, could not sue.There were numerous holdout issues, one of which was whether companies should be permitted to sue for defamation. In NSW the Defamation Act of 2002 didn’t allow corporations to bring actions in defamation. In other states, they could. Also, the NSW court of appeal had decided that public bodies, like shire councils and government authorities, could not sue.
It is an article of faith in the Liberal party that the reputations of corporations and their delicate “feelings” be fully protected by the law. The Business Council of Australia was adamant. Hugh Morgan – the council’s president in 2005 – said the very idea that corporations should not be permitted to sue for defamation was an “outrageous attack on the corporate sector ... The proposal remains an abomination.”It is an article of faith in the Liberal party that the reputations of corporations and their delicate “feelings” be fully protected by the law. The Business Council of Australia was adamant. Hugh Morgan – the council’s president in 2005 – said the very idea that corporations should not be permitted to sue for defamation was an “outrageous attack on the corporate sector ... The proposal remains an abomination.”
The Coalition government fought hard to give the captains and cabin boys of industry what they wanted. Ruddock insisted that companies be able to sue their detractors in the courts, but the Labor state governments wanted the prohibition against corporate libel actions to be the rule across the nation. It was one of the sticking points during the negotiations and, in the end, to get agreement Ruddock relented.The Coalition government fought hard to give the captains and cabin boys of industry what they wanted. Ruddock insisted that companies be able to sue their detractors in the courts, but the Labor state governments wanted the prohibition against corporate libel actions to be the rule across the nation. It was one of the sticking points during the negotiations and, in the end, to get agreement Ruddock relented.
There was a weird sort of compromise, whereby only very small corporations, of less than 10 employees, could sue in their own name. This was a crumb tossed off the table so the commonwealth attorney general could save face.There was a weird sort of compromise, whereby only very small corporations, of less than 10 employees, could sue in their own name. This was a crumb tossed off the table so the commonwealth attorney general could save face.
Such has been the case since the uniform Defamation Act came into being in 2006. Now, nine years later, the Hodgman Liberal government in Tasmania is proposing to break ranks, amend its act and let corporations of all stripes off the leash so they can sink their fangs into citizens critical of “job creating” proposals.Such has been the case since the uniform Defamation Act came into being in 2006. Now, nine years later, the Hodgman Liberal government in Tasmania is proposing to break ranks, amend its act and let corporations of all stripes off the leash so they can sink their fangs into citizens critical of “job creating” proposals.
Ostensibly this is an accompaniment to grand plans to get more deforestation underway. The last thing a good woodchipper, logger or arboreal hotel developer wants is pesky protestors saying rude things about their visionary schemes.Ostensibly this is an accompaniment to grand plans to get more deforestation underway. The last thing a good woodchipper, logger or arboreal hotel developer wants is pesky protestors saying rude things about their visionary schemes.
In the US these sort of legal claims were christened Slapp actions – strategic lawsuits against public participation. They were designed to shut people up, drown them in huge legal bills and generally put annoying small fry out of business.In the US these sort of legal claims were christened Slapp actions – strategic lawsuits against public participation. They were designed to shut people up, drown them in huge legal bills and generally put annoying small fry out of business.
In Australia, it was thought dangerous to be too critical about Slappers, because it implied they were using the courts as an abuse of process, and that that in itself might be defamatory.In Australia, it was thought dangerous to be too critical about Slappers, because it implied they were using the courts as an abuse of process, and that that in itself might be defamatory.
The ACT is the only Australian jurisdiction with legislation designed to protect legitimate public interest discussion – the Protection of Public Participation Act, 2008.The ACT is the only Australian jurisdiction with legislation designed to protect legitimate public interest discussion – the Protection of Public Participation Act, 2008.
There have been some diabolical excursions by large companies seeking to gag critics. The McLibel case in England dragged on for 10 years and saw the mighty hamburger chain take on two pamphleteers who claimed McDonald’s sold unhealthy addictive fast food, ruined rainforests, exploited children, poisoned customers and generally despoiled the planet.There have been some diabolical excursions by large companies seeking to gag critics. The McLibel case in England dragged on for 10 years and saw the mighty hamburger chain take on two pamphleteers who claimed McDonald’s sold unhealthy addictive fast food, ruined rainforests, exploited children, poisoned customers and generally despoiled the planet.
Some of the claims were found to be true while others were libellous. Damages of £40,000 were awarded, which the company never collected. Later the European Court of Human Rights found that the defendants had been denied a fair trial and that they were entitled to the freedom of expression protections of the European convention on human rights. There was an award of £57,000 against the UK government.Some of the claims were found to be true while others were libellous. Damages of £40,000 were awarded, which the company never collected. Later the European Court of Human Rights found that the defendants had been denied a fair trial and that they were entitled to the freedom of expression protections of the European convention on human rights. There was an award of £57,000 against the UK government.
One of the high-water marks of Australian corporate folly was Tasmanian timber company Gunns suing 20 protestors, including the then Greens leader Bob Brown, the Wilderness Society, Doctors for Native Forests and various “tree huggers”. It pleaded a vast range of “economic torts” and said it had been subject to “corporate vilification”.One of the high-water marks of Australian corporate folly was Tasmanian timber company Gunns suing 20 protestors, including the then Greens leader Bob Brown, the Wilderness Society, Doctors for Native Forests and various “tree huggers”. It pleaded a vast range of “economic torts” and said it had been subject to “corporate vilification”.
The company was required by the courts on various occasions to replead its case. As media lawyer Bruce Donald pointed out in a paper to the Walkley Foundation:The company was required by the courts on various occasions to replead its case. As media lawyer Bruce Donald pointed out in a paper to the Walkley Foundation:
This is a classic illustration of how legal process favours a well-financed litigant against small publishers and ordinary people and groups.This is a classic illustration of how legal process favours a well-financed litigant against small publishers and ordinary people and groups.
The corporate plaintiff has the resources to keep going until the protesters drop with exhaustion, with pockets drained. After countless hearings, the vilification case collapsed. There were findings in favour of Gunns on other issues and undertakings given by a number of the defendants not to continue their protests.The corporate plaintiff has the resources to keep going until the protesters drop with exhaustion, with pockets drained. After countless hearings, the vilification case collapsed. There were findings in favour of Gunns on other issues and undertakings given by a number of the defendants not to continue their protests.
Despite some costs awards in its favour, Gunns’ legal bill would still have been enormous.Despite some costs awards in its favour, Gunns’ legal bill would still have been enormous.
Maybe the Tasmanian government isn’t aware that corporations already have other arrows in their litigation quiver, apart from defamation. On numerous occasions the false and misleading conduct provisions of the Trade Practices Act, now called the Competition and Consumer Act, have been wheeled out to silence critics.Maybe the Tasmanian government isn’t aware that corporations already have other arrows in their litigation quiver, apart from defamation. On numerous occasions the false and misleading conduct provisions of the Trade Practices Act, now called the Competition and Consumer Act, have been wheeled out to silence critics.
The People for the Ethical Treatment of Animals was sued by the wool industry’s promotional organisation, Australian Wool Innovation, over claims about “mulesing” and cruel practices in the live sheep export trade. Peta urged retailers not to buy Australian wool products until the industry cleaned up its act. Treasurer Peter Costello was so incensed that he proposed a law to allow the Australian Competition and Consumer Commission to bring actions on behalf of farmers against anyone urging boycotts of the golden fleece. The People for the Ethical Treatment of Animals was sued by the wool industry’s promotional organisation, Australian Wool Innovation (AWI), over claims about “mulesing” and cruel practices in the live sheep export trade. Peta urged retailers not to buy Australian wool products until the industry cleaned up its act. Treasurer Peter Costello was so incensed that he proposed a law to allow the Australian Competition and Consumer Commission to bring actions on behalf of farmers against anyone urging boycotts of the golden fleece.
At one point in the proceedings, which ultimately were settled, a director of AWI was quoted as saying: “If we have a massive bill, so have they got a massive bill.”At one point in the proceedings, which ultimately were settled, a director of AWI was quoted as saying: “If we have a massive bill, so have they got a massive bill.”
David Jones famously used the Trade Practices Act to sue The Australia Institute over a media release and study on advertising and marketing called, Corporate Paedophilia - sexualisation of children in Australia. David Jones famously used the Trade Practices Act to sue the Australia Institute over a media release and study on advertising and marketing called Corporate Paedophilia – Sexualisation of Children in Australia.
The Institute appears to have settled, rather than run up large costs, and has removed the media release and other material relating to David Jones from its website. The institute appears to have settled, rather than run up large costs, and has removed the media release and other material relating to David Jones from its website.
The examples of public campaigners being on the butt end of large-scale legal responses are too numerous to mention, but we should not forget: the Bannockburn Yellow Gum Action Group, the Hindmarsh Bridge campaigners, John Sinclair who campaigned to stop mining on Fraser Island, anti-nuclear campaigner Noel Wauchope and even the author of Forest-Friendly Building Timbers, who ran foul of the National Association of Forest Industries resulting in some retailers withdrawing the book from sale. The examples of public campaigners being on the butt end of large-scale legal responses are too numerous to mention, but we should not forget: the Bannockburn Yellow Gum Action Group, the Hindmarsh Bridge campaigners, John Sinclair who campaigned to stop mining on Fraser Island, anti-nuclear campaigner Noel Wauchope and even the author of Forest-Friendly Building Timbers, who ran foul of the National Association of Forest Industries, resulting in some retailers withdrawing the book from sale.
Even if many of these cases do not result in finality before a court, it is the legal bills that force public interest defendants to roll over and shut up. The outcome is a frightful timidity in public discussion of issues that ought to be publicly critiqued. The corporates avoid fighting with good arguments in the public domain, instead preferring litigation.Even if many of these cases do not result in finality before a court, it is the legal bills that force public interest defendants to roll over and shut up. The outcome is a frightful timidity in public discussion of issues that ought to be publicly critiqued. The corporates avoid fighting with good arguments in the public domain, instead preferring litigation.
We now have a phoney war being waged by old cultural warriors claiming the Racial Discrimination Act is the cause of our free speech woes. Quite apart from courts allowing competition law to be used as a weapon against public interest campaigners, the real enemy of free speech lies in a cumbersome, expensive, uniform Defamation Act, skewed in favour of plaintiffs.We now have a phoney war being waged by old cultural warriors claiming the Racial Discrimination Act is the cause of our free speech woes. Quite apart from courts allowing competition law to be used as a weapon against public interest campaigners, the real enemy of free speech lies in a cumbersome, expensive, uniform Defamation Act, skewed in favour of plaintiffs.
While the mother country has significantly streamlined and liberalised its defamation laws, we are stuck with the horse and buggy model. While the mother country has significantly streamlined and liberalised its defamation laws, we are stuck with the horse-and-buggy model.
To further restrict the ability of public interest campaigners to press their case, as the Tasmanian government proposes, is to make Australia’s free speech landscape deeply depressing.To further restrict the ability of public interest campaigners to press their case, as the Tasmanian government proposes, is to make Australia’s free speech landscape deeply depressing.
Where’s Tim (Freedom Boy) Wilson when we need him?Where’s Tim (Freedom Boy) Wilson when we need him?