- The Helensburgh SLAPP Case
- Harassment , Intimidation and Diversion
- Can Government SLAPP? - The Ballina Case
- Other Forms of Legal Harassment
- Who are the Targets?
- Conclusions for Australia
In 1991 business people attending the Third Annual Pollution Law Conference
in Sydney and Melbourne were presented with a paper entitled "Legal Rights of
Industry Against Conservationists" which
advised them about legal action that could be taken against environmental activists.
Conference attendees were told about developments in the US which were relevant
to Australia, including the widespread use of lawsuits to intimidate or "chill-out"
Every year thousands of people are sued in the USA for speaking out against
governments and corporations. Multi-million dollar law suits are being filed
against individual citizens and groups for circulating petitions, writing to
public officials, speaking at, or even just attending, public meetings, organising
boycotts and engaging in peaceful demonstrations. These law suits have been labelled "Strategic
Lawsuits Against Public Participation" or SLAPPs by University of Denver academics
Penelope Canan and George Pring, who have been studying such suits for more
than a decade with the help of funding from the US National Science Foundation.
Canan and Pring define a SLAPP as being a civil court action which alleges
that injury has been caused by the efforts of individuals or nongovernment organisations
to influence government action on an issue of public interest or concern.
They began their research after they noticed an increasing number of environmentalists
were being named as defendants in large civil damage cases.
They found that "SLAPPs are filed by one side of a public, political dispute
to punish or prevent opposing points of view."
Of course people using SLAPPs in this way cannot directly sue people for exercising
their democratic right to participate in the political process so they have
to find technical legal grounds on which to bring their cases. Such grounds
usually include defamation, conspiracy, nuisance, invasion of privacy or interference
with business/economic expectancy. At the Pollution Law Conference in 1991, business
people were told "The lessons for Australia contained in SLAPP suits is that
the US cases are based on causes of action available in Australia" and that
US experience concerning SLAPP suits is "indicative of possible future developments
Indeed several Australians have faced or are currently facing such law suits
at the moment. For example, Jim and Jenny Donohoe and Tim Tapsell have been
SLAPPed for supporting a Local Environment Plan that proposed rezoning rural
land near Helensburgh as environmentally protected land. The developers wanted
the land to be rezoned for residential development and one of the larger landholders
sued them for conspiring with each other "to damage or destroy the financial
and commercial interests of the Plaintiffs with the sole or predominant purpose
of injuring the commercial interests of the Plaintiffs."
In 1986 the Helensburgh District Protection Society was formed after Wollongong
City Council proposed that the town of Helensburgh, on the southern edge of
Sydney, be dramatically expanded. Members of the Protection Society, believed
such development would be environmentally damaging. The Donohoes and Tim Tapsell
were active members of the society, Tim Tapsell acting as spokesperson on several
occasions and Jenny Donohoe as secretary. The Protection Society opposed a number
of development proposals in the following years including a Wollongong City
Council plan in 1990 to rezone land in the green belt between Sydney and Wollongong,
adjoining the Royal National Park as residential land. There were 5103 submissions
in response to the plan, the vast majority opposing the urban expansion, and
as a result the Council dropped the plan in 1991. The following year the Council put a new plan
on public display which included the rezoning of much of the land as "environmental
protection". Public submissions were invited on the plan.
In all their activities the Protection Society was careful not to name individual
persons or companies so as to avoid defamation suits and so the Donohoes and
Tapsell were shocked to be served with a writ in 1993. According to the writ
against them, they had forwarded letters to the council promoting rezoning;
printed and arranged for about 1085 people to sign copies of letters promoting
the rezoning which they delivered to council; and written articles in favour
of the rezoning which were subsequently published. They do not deny any of this.
However, the developers argue that the effect of this rezoning (for environmental
protection) would be to prevent them from developing their land and that "the
defendants were aware of that effect and sought to achieve that effect".
They therefore sought to claim damages from the defendants for those losses.
The developers also claim that the published articles were inaccurate and misleading
because, amongst other things, the articles claimed that environmental damage
will result from residential development in the area.
The defendants claimed that far from conspiring to deprive the developers
of their profits they were responding to a request by Wollongong City Council
for the public to make submissions on the Local Environment Plan. In fact the
successful operation of the NSW Environmental Planning and Assessment Act depends
on public submissions. The defendants argued that their submissions supported
rezoning for environmental reasons; they wanted to prevent pollution of the
Hacking River, prevent proliferation of urban sprawl, protect natural and native
flora and fauna in the area and preserve the natural buffer between Wollongong
Aided by the efforts of the Helensburgh District Protection Society, Wollongong
City Council received over 7000 submissions this time with over 5000 of them
supporting the rezoning for environmental protection. The Council decided to
go ahead with the rezoning but was forced by the Minister for Planning, who
had been lobbied by the developers, to hold a Commission of inquiry.
Shortly before the inquiry, the Donohoes were threatened with further legal
action for lobbying to have the inquiry cancelled. At the opening of the inquiry Jenny Donohoe
told the Commissioner that her submission could be jeopardised because of the
legal action against her. Consequently
the Commissioner was concerned that the legal action might jeopardise the inquiry
itself. As a result the developers made an undertaking not to further prosecute
the existing Supreme Court case till the conclusion of the Inquiry and not to
pursue any action as a result of statements made at the inquiry. Nevertheless
the Donohoes' lawyers warned them that such an undertaking had no legal force
and the Donohoes' ability to participate in the inquiry was severely hampered
because of the forthcoming case. According to Jenny Donohoe others were also
affected when they heard of the writ and removed their submissions from the
At the end of 1994 the Commissioner recommended that more than three quarters
of the land be zoned for "environmental protection" and the remaining lands
be subject to further studies before it is zoned. Most recently the newly elected
State Government was reported as banning large-scale residential development
at Helensburgh at least till the results of a three year study into Sydney's
air quality has been completed. But the
writ still hangs above the heads of the Donohoes and Tapsell. The developers
show no sign of bringing it to court and it remains in limbo, able to be activated
whenever the developers feel it might be useful.
The writ has already cost the defendants thousands of dollars, even though
the case has yet to come to court and the developers are unlikely to win if
it does. It has also taken its toll in stress and sickness within the families
involved. Recent changes to the Legal Aid Commission, reinstating legal aid
for public interest environment matters, may mean that they will have some limited
financial support if the case goes to court. But for Jenny Donohoe there is
no doubt that SLAPPs do work to intimidate community minded citizens and to
victimise key individuals so that their voice is not heard.
In the US such cases seldom win in the courts. The charges often seem extremely
flimsy and the damage claims outrageously large. Most are dismissed by the courts and 77% of
those that are heard by the courts are won by the people being sued. Less that
ten percent of such cases in the USA result in a court victory for the filer
of the action. However companies and organisations
taking this legal action are not doing so in order to win compensation from
the victims of their attacks. Rather their aim is to harass, intimidate and
distract their opponents.
One trial judge pointed out:
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.
The cost to a developer is part of the costs of doing business but the cost
of a court case to an individual is huge. In 1983 the US Supreme Court stated
in one such SLAPP case that a lawsuit may be used "as a powerful instrument
of coercion or retaliation" and no matter how flimsy the case the defendant
"will most likely have to retain counsel and incur substantial legal expenses
to defend against it..." 
Such a case takes an average of three years and even if the person being sued
wins it can cost tens of thousands of dollars in legal fees. Personal and emotional
stress, disillusionment, diversion of time and energy, and even divisions within
families, communities and groups can also result. For example George Campbell
organised his neighbours to protest against the expansion of an airport near
their homes in Worcester, Massachusetts. After he was threatened with a lawsuit
from the city council for $1.3 million he thought he was going to loose everything
and ended up in hospital as a result of the stress. The council dropped the
suit a few weeks later.
Not only does a SLAPP deter those involved from participating in political
debate freely afterwards, but it also deters other citizens from speaking freely
and confidently about local public issues. Dixie Sefchek, says that when she
and three other leaders of Supporters To Oppose Pollution (STOP) were SLAPPed
it was "like a death threat to your organisation. People, organizations, and
churches stopped giving money. Individuals resigned their memberships." The
suit was later dropped and the landfill (a place where wastes are buried in
the ground) they opposed ordered to be closed and few years later because of
contamination of the groundwater.
Research by Penelope Canan in fact shows that people who know about SLAPPs
are more cautious about speaking out publicly than those who have never heard
of them. This intimidation of public discussion
is referred to as chilling. Judges in one US court decried a SLAPP for this
[W]e shudder to think of the chill... were we to allow this lawsuit
to proceed. The cost to society in terms of the threat to our liberty and freedom
is beyond calculation... To prohibit robust debate on these questions would
deprive society of the benefit of its collective thinking and... destroy the
free exchange of ideas which is the adhesive of our democracy.
One tactic used here is to include John Does and Jane Does and "unnamed persons"
as defendants to "spread the chill". This is a way of claiming that there are additional
"offending" citizens who could not be identified before the suit was filed and
leaves the way open to sue other citizens later.
SLAPPs often do not go to trial because the objective, to scare off potential
opponents, can be achieved merely by the threat of the court case. Kim Goldberg
points out that "company layers will usually go to great pains to warn activists
of impending defamation suits. After all, why waste time and money filing legal
papers to initiate a lawsuit if the mere threat of a suit will silence your
Another effect of the SLAPP is to distract the key antagonists from the main
controversy and use up their money, time and energy in the courtroom, where
the issues are not discussed. Activists use the political arena to expand the
debate, enrol other citizens on their side and spread the conflict. The firms
and developers that utilise SLAPPs are trying to subvert and circumvent that
political process "by enlisting judicial power against their opponents." SLAPPs
are an attempt to "privatise" public debate--a unilateral effort by
one side to transform a public, political dispute into a private, legal adjudication,
shifting both forum and issues to the disadvantage of the other side.
SLAPPs can also shift the balance of power giving the firm filing the SLAPP
suit the upper hand when they are losing in the political arena. Action tends to be taken against citizens
who are successfully opposing them because those taking the action are afraid
that they will not win in the public, political forum. In the courts, the wealth of the disputants,
and their ability to hire the best lawyers can influence the outcome. Moreover,
Whereas in the political realm the filer is typically on the defensive,
in the legal realm the filer can go on the offensive, putting the target's actions
Prolonged litigation can even achieve community compliance through delay and
loss of sustained interest in the broader public.
SLAPPs are not just the province of private companies and developers either.
Bill Ringland, chair of the Clean Seas Coalition, was sued by his local council
for putting out a press release that the council claimed was defamatory. The
press release, which was quoted in the local paper, The Northern Star,
said that sewage "will continue to be pumped out surreptitiously at night" from
the local ocean outfall. Ringland was
referring to Ballina Shire Council practice of discharging sewage effluent at
night from its treatment ponds and the fact that most local residents were unaware
of this practice. The Council chose to interpret the use of the word "sewage"
in Ringland's press release as raw sewage rather than treated sewage and the
word "surreptitiously" as secretly and unlawfully and therefore claimed that
the press release was falsely accusing the Council of breaching its license
The Council, via its solicitors, demanded an apology from Ringland, who declined.
The Northern Star, however, printed a full apology on its own behalf,
saying that it accepted "the view of the Ballina Shire Council that there is
no sewage being put into the sea by the council." The newspaper also suggested that the Clean
Seas Coalition was unjustifiably trying to discredit the council.
The judge for the defamation case referred the case to Court of Appeal of
the Supreme Court of NSW to determine whether a Council had the power and authority
to sue for defamation, whether it could sue for injurious falsehood and whether
the costs of a special meeting of council could constitute special damages.
Ringland was represented from the beginning by a group of concerned lawyers
led by Clive Evatt, QC. The court found (in a 2 to 1 decision) that a Council
could not sue for defamation (although individual councillors could).
Judge Gleeson noted that there were only two reported cases of a local authority
suing for defamation in England and none completed in NSW. In his judgement
he stated that
The idea of a democracy is that people are encouraged to express their
criticisms, even their wrong-headed criticisms, of elected governmental institutions,
in the expectation that this process will improve the quality of the government.
The fact that the institutions are democratically elected is supposed to mean
that, through a process of political debate and decision, the citizens in a
community govern themselves. To treat government institutions as having a "governing
reputation" which the common law will protect against criticism on the part
of citizens is, to my mind, incongruous.
The Court of Appeal, however did find that Ringland could sue the Council
for abuse of process and also that the Council could sue for Ringland for the
costs of a special meeting resulting from the alleged injurious falsehood. Both
matters were referred back to the original court for trial but they are likely
to be settled out of court.
In Australia legal means have also been used against protesters involved in
civil disobedience. In one case five protesters superglued and bolted themselves
onto logging machinery in Badja State Forest in NSW. They were charged with
"intimidating" the logger who was 600m away at the time. Normally such protesters
have been charged with trespass but most such charges are dismissed by the courts.
The criminal charge of "intimidation" has been on the statute books for almost
100 years and carries with it the possibility of jail sentences. It was only
recently discovered by local police who say they will use it more often in future.
In 1993 the protesters were found guilty and fined $4000 in the first conviction
of this kind. The Australian Council of Civil Liberties backed an appeal against
the convictions saying that they were an "outrageous" interference with the
"basic right to protest".
In other cases the Trade Practices Act has been used against environmental
activists. The Act contains provisions, "secondary boycott provisions", that
were originally introduced to stop trade union actions, including strikes. It
made it illegal for a group of people to interfere with the provision of services
or products that one party has contracted to provide to another party.
This act was used against Greenpeace Australia in March 1991.
The ship "Western Odyssey" was undertaking seismic testing in Victorian waters
for BHP Petroleum to investigate the feasibility of drilling for oil. Greenpeace was concerned about the impact
that the sonic booms would have on the Southern Right Whale, because the area
was a breeding and calving ground for the whales. (The area is now a whale sanctuary)
It was also concerned about the environmental impact of offshore drilling. BHP
had said that it wouldn't drill whilst the whales were calving but Greenpeace
campaigners felt they couldn't trust them to stop a multi-million dollar operation
for six months of the year.
Greenpeace Australia, using the Rainbow Warrior, interfered with the seismic
testing by continually moving a buoy that the testing boat was dragging behind
it to receive back the resonations from the sonic booms. This interfered with
their measurements. In response BHP used a section 45D of the Trade Practices
Act to gain a court injunction to stop Greenpeace from coming near the testing
boat. The injunction was taken out against Greenpeace, as well as the captain
of the Rainbow Warrior, Joel Stewart, and the campaign coordinator, Molly Olson.
The application to the court also "sought declarations against Greenpeace
for conspiracy and trespass and an order for damages." The 1991 Pollution Law
Conference was told that this was an excellent example of legal action being
used against environmentalists "as it highlights the combination of a number
of different types of actions (breach of Section 45D, interference with agreements,
conspiracy and trespass) with a range of remedies (injunctions and damages).
Greenpeace, and the individuals involved, were worried that damages, including
the costs such as the hire of the boat and lost oil production, could amount
to millions of dollars. But BHP withdrew the charges before the case reached
The Trade Practices Act has seldom been used in this way but often threatened.
It was threatened by the Forest Products Association against the North East
Forest Alliance activists who were trying to prevent logging in the Chaelundi
wilderness area. A separate court case which declared logging in this area illegal
saved the activists at the last minute in this case. It was also used by Australian
Paper and Pulp Manufacturers (APPM) in 1993 to threaten the Wilderness Society
in Tasmania which was campaigning against the export of woodchips and by the
Federal Airport Corporation against fishing people who were interfering with
the dredging of Botany Bay to construct a third runway for Sydney's Mascot airport.
The fishing people were concerned that the dredging would adversely affect the
Bay and therefore reduce their fish catches by up to 75 percent. The Australian
Consumers Association (ACA) and the Australian Federation of Consumers Organisations
(AFCO) have had legal advise that consumer boycotts against environmentally
damaging products might also be illegal under the same Act.
As in the case of the use of the Trade Practices Act, SLAPPs are not restricted
to environmentalists, and have covered other issues such as consumer protection
issues in both the US and Australia. Canan,
in her study with Pring, found that those filing the suits assumed that economic
rights were superior to public interests. "The idea is that because a business
has money at stake, business should receive priority over civic, communal opposition.
The targets of these law suits are generally not radical environmentalists
nor professional activists. They are ordinary middle-class people who are concerned
about their local environment and have no history of political activity. They are often the organisers of opposing
groups, or preceived trouble makers. At
Hinchinbrook when over 100 people protested whilst Mangroves were cleared, only
one woman was sued by the developer for trespass and damages--Margaret Thorsborne,
67, who had been one of the leaders of the campaign to stop development in the
area. The action was later withdrawn but not before it had cost her considerable
worry and money for lawyers' fees.
TABLE: Identity of First Party in 100 US SLAPPs
Voluntary Organisation Member
Economic Role (eg Owner)
Public Interest Group
The concentration on local resident protestors rather than professional environmentalists
is no accident either. Local residents often have most to lose and don't have
the support and ideological commitment that a professional environmentalist
in a large environmental organisation usually has. Law suits are usually aimed
at intimidating middle-class citizens who have assets and mortgages that could
be seized and are less threatening to young activists without assets who have
little to lose. Kelpie Wilson, who was one of six activists SLAPPed in Oregon
by a logging company argues that
Non-violent civil disobedience, historically a political tool of great
importance to this country, is no longer a viable option for many activists....in
future activists will probably have to divide into two camps. Those who do direct
action will have to stay lean, mean and low on the food chain. They can't keep
suing us when they don't get anything out of it.
However, in Britain, McDonald's, one of the largest companies in the world,
has made the mistake of suing two unemployed activists who have nothing to loose
and much to gain from the case. Dave Morris and Helen Steel were allegedly distributing
London Greenpeace pamphlets "What's Wrong With McDonalds". (London Greenpeace
is an anarchist group not affiliated to Greenpeace International.) The publicity
generated by the case has meant that the original pamphlet has had massive distribution
around the world. "In the UK alone, over a million leaflets have been distributed
since the writs were slapped on us" says Steel.
Their views are being broadcast from the court around the world whilst McDonald's
struggles to minimise the poor publicity. It has been reported in an article
in The Independent entitled "McLibel Two make silly burgers of McDonald's"
that McDonald's is now attempting to end the action in secret negotiations with
Because this is a libel case Morris and Steel have no right to legal aid and
are defending themselves against McDonald's top lawyers. Even before the case
went to trial in 1994, there had been several years of pre-trial hearings. It
is now the longest running libel trial in UK history.
Steel claims that in the past people have been intimidated by McDonald's threats
of law suits and backed off from criticisms of the company. Morris argues that
a climate of fear had been created and the word had gone out that if you said
anything against McDonald's you would get a writ. McDonald's claims that it
is taking the action to establish the truth. Prior to the case McDonald's infiltrated
the meetings of London Greenpeace to gather evidence against them and the private
investigators who did this later gave evidence at the trial. McDonald's has
also been successful in petitioning the judge not to have a jury for this case,
arguing that the issues were too complex for a jury to understand.
Morris and Steel are now supported by an international "McLibel Support Campaign"
which is raising money to help with costs. They intend to call about 170 witnesses
to give evidence against McDonald's practices and products. To win their case
Morris and Steel have to prove that every statement in the pamphlet is true.
They are also suing McDonald's in what is termed a SLAPP-back (sometimes also
used by US targets of SLAPP suits), for distributing leaflets calling them liars.
So far SLAPPs have been relatively infrequent outside of the US. In the US
"the enactment of statutory regimes contemplating or requiring public input"
and the liberalisation of the rules of who can take court action on environmental
matters means that citizens have "unprecedented access to government and the
courts with respect to decisions affecting the environment." SLAPPs as a tactical
response by pro-development business interests to the increasingly effective
use that environmental and citizens groups make of these opportunities.
There are no shortage of legal mechanisms available to developers and polluters
in Australia to use against vocal critics and activists. In the past developers
have often succeeded without having to resort to such tactics. However, it can
be expected that if residents' and environmental groups become more effective
in Australia, there will be an associated increase in the use of lawsuits by
developers and businesses to counter them. Already the Trade Practices Act,
common law and other legal measures that are being used by government authorities
and private companies to inhibit free speech and political activism in Australia.
As Jenny Donohoe from Helensburgh, NSW says, for a relatively small amount
of money "anyone can put up a statement of claims against you" whether or not
they have any evidence to support their case. What is more it doesn't take much
for a public statement to be defamatory but the defences which are available
to a defendant, for example that the statement is fair comment and made in good
faith, have to be established in court. This means that it is unlikely that
a writ can be summarily dismissed by the courts in Australia without a full
Several US states have responded to the epidemic of SLAPP cases with legislation
aimed at making it more difficult for developers to sue. Californian Senator,
Bill Lockyer, a supporter of such legislation argued that "Our courts are being
used by wealthy and special interests to prevent citizens from speaking out
on legitimate public controversies." California, New York, Washington, Nevada,
Florida, Texas and several other states have all introduced such legislation.
In New York, for example, people filing lawsuits have to show that the person
being sued acted in malice and with "reckless disregard for the truth".
In countries where the constitution does not guarantee the right of citizens
to petition government it is more difficult for state or provincial governments
to enact legislation to discourage SLAPP suits. However Stephen Keim, Barrister-at-Law, argues
that in Australia there is an implied protection of free speech in the Commonwealth
Constitution that could be used to make it more difficult for SLAPP writs to
operate. He cites a 1992 case (Nationwide
News Pty.Ltd vs. Wills) in which the judge said that the doctrine of representative
government which the Constitution incorporates "presupposes an ability of represented
and representatives to communicate information, needs, views, explanations and
advice. It also presupposes an ability of the people of the Commonwealth as
a whole to communicate, among themselves, information and opinions about matters
relevant to the exercise and discharge of governmental powers and functions
on their behalf." Keim believes that there is scope for test
cases to explore the potential of this doctrine of representative government
as a way of summarily dismissing suits that offend against the citizens' right
to communicate among themselves on matters of public importance.
Another option is for people who are targeted for SLAPPs to SLAPP-back (or
sue the developers in return). Some people in the US have won large amounts
of money in this way. In Australia, the torts of abuse of process and malicious
prosecution are available for this purpose but such responses depend on the willingness
and financial ability of those involved to use them. It really requires special
legislation to deal with the phenomenon of SLAPPs in a more integrated and comprehensive
As far back as 1991 the ALP National Conference resolved to provide a legal
framework "to ensure that registered organisations and community organisations
and their members are able to exercise their right to take industrial action
and other legitimate forms of demonstration consistent with the principles of
freedom of association, without legal penalty such as the secondary boycotts
provisions of the Trade Practices Act and common law actions..." The purpose
of this resolution was to protect trade unions and community groups such as
Greenpeace.  We are still awaiting such
a legal framework that would protect citizens' rights to participate in the
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.