$660 million defamation suit against Greenpeace: The rise of SLAPP suits
- Sithuthukile Mkhize and Mazi Choshane
Our Civil and Political Justice team reflects on the use of Strategic Litigation Against Public Participation against human rights defenders
In the United States, a recent judgment against Greenpeace has ordered the environmental organisation to pay a staggering $660 million in damages to a fossil fuel company for its involvement in a protest against Energy Transfer. This lawsuit is a clear example of a Strategic Lawsuit Against Public Participation (or SLAPP), aimed at silencing Greenpeace and deterring advocacy efforts.
SLAPP is a term given to lawsuits that are usually meritless and instituted to silence, intimidate, isolate and dissuade activism against issues in the public interest. These lawsuits are commonly used by corporations who flex their financial muscle to avoid their responsibilities to respect human rights, typically harming vulnerable and impoverished people.
The litigation often takes the form of defamation lawsuits where corporates seek unreasonable damages claims against individuals and organisations who seek to hold the corporations accountable for various violations. Recently, in South Africa, interdicts have also been used frequently by corporations to suppress activism and silence human rights defenders. These lawsuits may also be classified as SLAPP suits.
Greenpeace argues that not only was the claim against it unreasonable, but it also far exceeds the organisation’s operating budget and income. Even more alarming is that the US North Dakota jury found in favour of the fossil fuel company. Greenpeace warns that paying the claim would result not only in its bankruptcy but would lead to shutting its doors. Furthermore, the Dallas-based Energy company lawsuit infringed on Greenpeace’s right to freedom of speech.
The character and nature of SLAPP suits are to target critics and activists with the aim of eliminating them as individuals or organisations and their cause. Courts are used as weapons to punish these activists and critics to impede their activism, and to send a chilling message to others who might take a stand. The impact of the court order extends beyond Greenpeace – it will dissuade other activists, human rights defenders, and organisations fighting the same or similar causes. This has a profoundly damaging effect on social justice activism, weakening movements that challenge corporate and state power.
In South Africa, social justice organisations which are at the forefront of activism on various public interest issues, like Greenpeace, are at risk of facing similar lawsuits against them. Laws offering direct protection against SLAPP suits do not currently exist in South Africa. The Constitutional Court has, however, recognised that SLAPP suits form part of abuse of court processes. This is the closest we have to a shield against SLAPP suits.
Social justice organisations, activists, human rights defenders and journalists have been the main targets and victims of SLAPP Suits, and the impact of these lawsuits is severe. Organisations such as Greenpeace who are donor funded experience severe setbacks when faced with a SLAPP suit. The setbacks are not only felt financially as they pull out their resources and time to defend the lawsuits, but they also strain the reputation and overall well-being of the organisation. This jeopardises the ability of the organisation to function optimally and continue fundraising for its operations.
These organisations represent impoverished, vulnerable and marginalised people who often do not have the means to afford legal representation. In this particular case, Greenpeace has played a vocal advocacy role in supporting the Standing Rock Sioux Tribe in their opposition to the Dakota Access Pipeline. The tribe, along with environmental activists, opposed the pipeline due to concerns over water contamination, environmental degradation, and the violation of indigenous sovereignty. SLAPP suits are therefore a threat to the survival of social justice organisations who litigate and advocate for issues in the public interest.
The call for anti-SLAPP legislation in South Africa and other countries is therefore not premature. While 35 states in the US have enacted anti-SLAPP laws to curb these types of lawsuits, North Dakota remains among the states without such legal protections. Although legislation may not entirely prevent or deter the institution of SLAPP suits by corporations, it will provide the necessary procedural and substantive mechanisms and safeguards for courts and judicial officers who adjudicate SLAPP litigation.
Additionally, provisions imposing penalties or cost orders on those who abuse the legal system may further discourage corporations from pursuing frivolous litigation to silence public participation. Legislation would also enable courts to reach just outcomes and allow courts to prevent the abuse of its own processes and maintain its integrity. States are therefore called upon to proactively establish Anti-SLAPP legislation to provide a much-needed layer of protection to victims of SLAPP lawsuits. Courts and the judiciary are called upon to take the necessary steps within their jurisdiction and mandate to uphold and protect the integrity of the court system to prevent abuse.
The right to freedom of speech is a fundamental right that should not be infringed using frivolous and nefarious lawsuits. Whilst the balancing of rights is essential in a healthy democracy, and whilst there is no hierarchy of rights, courts should not allow themselves to be used as spaces where rights and freedoms are threatened under the guise of meritless claims of defamation. The role of courts in adjudicating SLAPP suits is to conduct a balanced and fair assessment of the facts and legal issues, consider applicable legal principles based on existing laws to reach a just and equitable outcome that considers and protects the interests of both sides. In states where there is no legal protection against SLAPP litigation, courts ought to take proactive measures through applying and interpreting existing laws to protect fundamental rights and freedoms guaranteed in both international and domestic law.
Although Greenpeace intends to appeal the decision, the order sets a bad precedent that may take years for an appeal court to overturn. This means that Greenpeace will be embroiled in years of litigation, straining its financial resources and potentially impeding it from attracting more funding to continue assisting vulnerable communities and raising awareness on significant issues concerning the environment. Organisations, individuals, activists and journalists who assert the right to free speech through peaceful protest and demonstrations for issues in the public interest ought to be recognised and commended for their acts of bravery and not silenced through SLAPP suits. The court order awarded against Greenpeace is chilling and undermines the right to free speech and the right to peaceful protest.
Sithuthukile Mkhize and Mazi Choshane are based in the Civil and Political Justice programme at the Centre for Applied Legal Studies, Wits University.