Above photo: Sari Williams.
As Fossil Fuel Industry Works To Obstruct Climate Action.
But experts say these “abusive” lawsuits, which are designed to demoralize and drain resources from activists, should be fought, not feared.
Lawsuits to silence those speaking out and fighting in the interest of the public are increasingly being used as a form of private censorship, according to a new report published last week by the Coalition Against SLAPPS in Europe, or CASE.
Developed in collaboration with the Daphne Caruana Galizia Foundation, the report shows that SLAPPs continue to rise in Europe and identifies a total of 1,049 cases between 2010-2023. The lawsuits cover a broad range of topics, and environmental issues made up the second-most-targeted subject of all the SLAPP suits reported, behind corruption.
The report identified SLAPPs (Strategic Lawsuits Against Public Participation) in 41 countries across the continent, including Italy, Greece, the Netherlands, Poland, the UK, and Ukraine. Globally big oil, big ag, and other corporate interests have filed lawsuits against individuals and groups who advocate for environmental and climate protection and attempt to hold key players accountable.
In the UK, Shell and the platform builder Fluor sued Greenpeace in November 2023 following the group’s occupation of Shell’s North Sea oil production platform. The suit seeks $8.6 million in damages and a protest ban. In Poland, gas operator Gaz System S.A. sued an environmental activist for defamation in 2022 for writing an article on an anti-gas protest against the company.
In South Africa, Ikwezi Coal Mining Company started criminal legal proceedings for intimidation and assault against activist Lucky Shabalala in 2019.
This is the world of SLAPPs, “a form of an abusive lawsuit,” according to Charlie Holt, European Lead at the organisation Global Climate Legal Defense (CliDef) and part of CASE’s steering committee.
“That means journalists, activists, whistleblowers, sometimes academics, and the way [SLAPPs] operate is exactly the same [across cases]; that’s why you’ll see that your average SLAPP will try to isolate and target individuals,” Holt explained.
“We started to see an increase in the last couple of years in the use of SLAPPs by fossil fuel companies in Europe,” Holt said, explaining that the growth in political polarization and populism around the world influenced this rise. With populist governments on the march in Europe (and now in the U.S. with Donald Trump’s presidential nomination), companies “don’t seem as concerned” about potential backlash from attacking individual activists, journalists, or campaign organizations today.
With climate action SLAPP suits climbing worldwide, experts say it is now more crucial than ever to keep shining a light on the workings and threats posed by these so-called “nuisance” cases to help campaigners, journalists, activists and lawyers fight them, hold fossil fuel corporations and political leaders accountable, and maintain freedom of expression and action on climate and environmental issues.
The objective of a SLAPP is not necessarily to win the case, but to intimidate and deter activists and journalists from making information known to the public, according to the European Parliament, which in April this year adopted anti-SLAPP directives to protect against legal action that “silences critical voices.”
Litigation In Italy
At the end of October, Italy’s Eni filed a defamation lawsuit against Greenpeace Italy and advocacy group ReCommon, who had sued the company in 2023. The environmental groups alleged Eni used “lobbying and greenwashing” to push for more fossil fuels despite having known since 1970 about the risks from its oil and gas products.
In a statement on its website, Eni denies that this legal action represents “an attempt at intimidation” and that it cannot be qualified as a SLAPP, “given that the company has not made any claim for compensation,” and that its defamation allegations “are in no way unfounded.”
In November, in a separate criminal complaint, Eni also denounced Antonio Tricarico, programs manager at ReCommon, for statements he made on the Italian television program “Report” in May.
“My feeling and ReCommon’s feeling is that there is a legacy here that Eni is trying to isolate us, and particularly myself, from the possibility to express my opinion in any of the national media, including critical behavior of the company, even if fact-based,” Tricarico said. He added that civil society groups and small independent media expressed solidarity that wasn’t covered in the mainstream media. “This raises a lot of questions about how strong Eni’s influence is on most of the media [in Italy],” he said.
“Greenpeace, ReCommon, and Antonio Tricarico have attributed completely false criminal conducts to Eni, which cannot refrain from responding through the legal means provided to protect the dignity and work of the 30,000 people who work for the company,” an Eni spokesperson wrote in a statement to DeSmog. “This is not about freedom of expression, but rather the license to defame and slander.”
Holt says CASE’s report singles out Italy as a country with court cases that last longer than other nations’ do, and that a significant number of SLAPPs have been filed over the last two years in Italy in particular, along with Romania, Serbia and Turkey.
“[Italy’s primacy] is not because the courts have a tendency to impose huge damage claims. It’s because of the inefficiency of the court process,” said Holt. “And if you know anything about litigation, you know that that damage claim is slightly beside the point.”
He noted that litigation in Italy, even before trial, can be time-consuming and expensive.
“If you are going to have to endure that entire litigation process, by the time you get to trial, the amount of money you’ve had to spend in legal fees, the extent to which you’ve had to cast aside other … priorities … the impact it’s had on your morale, and the extent to which you’ve had to adjust your financial priorities in order to be able to meet the burden of litigation, the actual damage claim at the end of it is slightly beside the point,” Holt said. Plaintiffs never label their lawsuit as a SLAPP, he added. “They’ll all claim they have a legitimate [suit].”
This goes for global SLAPP cases outside of Italy as well. In Canada in 2019, the right-wing outlet Rebel News and its founder Ezra Levant sued DeSmog’s own executive director, Brendan DeMelle, in relation to an article covering a Rebel News journalist’s aggressive reporting on climate activist Greta Thunberg and her family. The legal proceedings lasted four years, and went all the way to the Supreme Court of Canada, which dismissed the plaintiff’s appeals and upheld DeMelle’s anti-SLAPP motion.
“It’s why they do it: to intimidate, to harass, to throw you off your beat, to make you less confident, to drain resources … and unfortunately, a lot of that can be really effective,” DeMelle said in an interview for the 2024 report Climate and Environmental Journalism Under Fire produced by the International Press Institute.
“Every Canadian court rejected Levant’s arguments and upheld my right, and the rights of other journalists, to fairly scrutinize the activities of outfits like the Rebel. The Supreme Court’s decision sends a strong signal that anti-SLAPP motions are a necessary and valid defense against lawsuits filed by bullies trying to intimidate journalists,” DeMelle explained. “Elected leaders around the globe should continue to enact and strengthen anti-SLAPP legislation to ensure the protection of journalists from similar attempts to silence us.”
The Global Impact Of SLAPPs
In Southeast Asia, Africa, and Latin America, SLAPPs mostly target environmental activism against extractive industries like mining companies and the agricultural sector, according to a 2020 report by the International Center for Not-for-Profit Law. Almost half of the cases in countries including Thailand, India, the Philippines, South Africa, Sierra Leone, and Honduras also involve criminal proceedings, and the most frequent targets are activists and civil society organizations, followed by journalists, publishers, and, finally, leaders and members of local communities.
In Australia, SLAPP suits initiated by the fossil fuel industry have focused on individual environmental activists, Julia Grix, legal counsel for Greenpeace Australia Pacific explained in an email to DeSmog. Grix is establishing the first independent environmental defenders legal service on the continent. In February, Australian oil and gas company Woodside requested compensation after suing Disrupt Burrup Hub activists for a protest against the company’s fossil fuel project, alleging “loss of earnings and brand damage.”
In another case, mining company Adani Australia sued activist Ben Pennings for $17 million for campaigning against its operations. On December 6, the Queensland supreme court struck out parts of the case, describing some of the company’s claims as “confused and embarrassing.”
In recent months, Santos Ltd., a multi-billion-dollar Australian fossil fuel company, has pursued a lawsuit against the Environmental Defenders Office (EDO) and other civil society organizations that challenged the construction of an export pipeline. On November 28, the Australian federal court ordered the EDO to pay $9 million in costs to the company.
“[Cases like these have] provoked concern from legal and human rights experts that litigation may limit community voices on issues of public interest and freedom of expression,” said Grix.
In the United States, EarthRights International identified 152 SLAPP cases from 2012 to 2022. These include the high-profile suit by Energy Transfer Partners (ETP), the company behind the Dakota Access Pipeline, which sued Greenpeace and other environmental groups in 2017. The lawsuit alleged that the groups’ support for the Standing Rock protests made them part of a “network of putative not-for-profits and rogue eco-terrorist groups,” and demanded $900 million in damages under the Racketeer Influenced and Corrupt Organizations (RICO) Act, a law created originally to fight organized crime.
A Form Of Abuse
The purpose of SLAPPs often goes beyond the matter of the lawsuit itself.
SLAPPs operate based on the false perception that they have substantial merits when their aim is really to “derail or repress the adversary,” said Lauren Regan, director of litigation and advocacy at the Civil Liberties Defense Center and chair of the legal working group Protect the Protest, a coalition supporting the movement to end SLAPPs in the United States.
A key problem with SLAPPs is that they tend to have an inherent power imbalance.
“They’re usually filed by [people or companies] in positions of power who are very well resourced. That’s important when it comes to climate action because, often, we’ll see companies who can very easily absorb the costs of litigation themselves … but to the target it can be absolutely crushing,” explained Holt.
The built-in “disparity of power,” said Regan, means that a crucial strategy of a SLAPP is to weaken the defendant’s position in any way possible.
“One of the motivations of a SLAPP lawsuit is to suck financial resources out of the organizations by forcing them to pay for lawyers and [litigation]; the other is to silence critics and derail the momentum of a particular campaign,” she said.
A growing number of anti-protest laws and legislation aimed at criminalizing activists and protestors that call out abuses of power in Europe, South America, Africa and Asia, create an atmosphere where it’s acceptable to make attacks that aim to stifle climate and environmental efforts.
According to Grix, environmental defenders have been increasingly criminalised throughout Australia through anti-protest legislation, the creation of new offenses, increased penalties, and the punitive use of powers such as bail and surveillance. These laws serve to “intimidate, silence, and suppress public debate” through SLAPPs, she said.
“From trying to make it difficult to engage in protests around fossil fuel infrastructure, for example, to making it difficult for activists to get visas and to participate in international negotiations, crackdowns on protests, raids … there’s certainly an effort to make it much harder to engage in climate activism and in environmental activism more generally,” said Nikhil Dutta, senior legal advisor on global programs at the International Centre for Non-Profit Law.
At the same time, Dutta emphasized that SLAPPs may be less common in places where the government is more willing and likely to crack down on protesters or activists. Because, the thinking goes, why worry about bringing a SLAPP suit when the government is already attacking activists, in some cases through threats and detention? And when corporations do hit their targets with SLAPPs, it’s usually with help from those same governments.
“You have a lot more collusion between the government and private interests in filing SLAPPs in the Global South than you may see in Europe or North America,” said Dutta.
Recognizing And Fighting SLAPPs
Experts say deciding what is and isn’t a SLAPP depends on a variety of factors.
“It’s not a box-ticking exercise. It’s not just a question of how many [criteria] are met, but also about the extent, should we say, to which they’re satisfied,” Holt said about classifying SLAPPs in Europe.
In the United States, 32 states have anti-SLAPP statutes that establish how to define a SLAPP. But there is no federal anti-SLAPP law. This, in turn, affects where SLAPPs are filed.
“The overwhelming majority of SLAPPs that have targeted environmental and climate [advocates] have been filed in federal courts where there is no anti-SLAPP statute,” Regan explained. “And in fact, one of the significant things we see from the industry in the U.S. is forum shopping, looking around for the friendliest federal judges to their industry possible and filing [the suit there.]”
This was the case with a Canadian timber company, Resolute Forest Products, which sued Greenpeace, Stand.earth, and individual activists for $300 million with RICO charges in 2016, explained Regan, who represented Stand.earth in the case. Resolute attempted to use a forum-shopping strategy, bringing the lawsuit in federal court in Georgia where SLAPP protections are weak, she said. With her team, she was able to successfully transfer the case to federal court in California. Resolute Forest Products was represented by the law firm Kasowitz, Benson & Torres LLP, the same firm that represented Energy Transfer Partners in its 2017 SLAPP against Greenpeace over the Dakota Access Pipeline.
Other countries including the Philippines, South Africa, and Indonesia also have forms of anti-SLAPP defenses, but in nations with no SLAPP regulation, it’s not a court that decides whether a suit is a SLAPP.
In these cases, “it falls to civil society or the local media to identify whether something is a SLAPP or not. It usually won’t be a court that does that,” Dutta said. “But even where those [anti-SLAPP statutes] don’t exist, courts have the ability to dismiss frivolous or abusive lawsuits and it’s possible to defend against it by showing that [the suits are] meant to harass.”
Most experts agree that the initial strategy to fight SLAPPs is to immediately get the case dismissed.
“Our number one goal is to get these lawsuits thrown out as fast as possible,” said Regan.
The Council of Europe published a recommendation on SLAPPs, which aligns with this strategy.
The new European Union anti-SLAPP directive mandates its 27 member states to conform their laws to EU law, so new regulations may be introduced nationally in Europe in the future.
Climate Disinformation And Obstruction
Part of the goal of a SLAPP is to have a “chilling effect,” Holt says. This often results in self-censorship so the individuals hit with SLAPPs, scared of compounding any legal threat, will be wary of speaking of or campaigning around the lawsuit.
However, the impacts of SLAPP suits go beyond the individuals targeted with lawsuits. This is because these types of lawsuits can be part of a wider public relations “offensive that seeks to retaliate against, bully, or intimidate critics and civil society,” according to the Business & Human Rights Resource Centre, which also set up a database to collect and explore SLAPP cases online.
Self-censorship, then, often spreads through a ripple effect to others who are not directly involved in the litigation.
“[A SLAPP] is deliberately intended to send a signal to those who would otherwise report, write or voice campaigns against the organization, that if you do so, ‘we will hit you hard, so don’t even bother,’” said Holt.
The chilling effects of SLAPPs are compounded by the fact that they can “feed off” social or political disinformation, as well as embolden it.
“For example, if you’ve got politicians smearing climate activists as eco-terrorists, it’s going to be easier for the organization [filing the SLAPP suit] to then say, ‘I’m filing a lawsuit not against an activist, but an eco-terrorist,’” Holt said, adding that this then legitimizes the politicians’ rhetoric and further marginalizes and discredits activism and campaigning.
SLAPP suits are also recognized as a reaction to successful climate and environmental advocacy. For example, CASE notes that SLAPPs emerge in response to very effective campaigns, well-researched reports or, more generally, efforts that have successfully exposed big polluters, even judicial proceedings where activists have challenged destructive projects in court successfully.
“SLAPPs are very clearly intended to obstruct progress on climate action,” Holt said.
Dutta adds that he also recognizes the power of civil society to rise up and keep pushing even when it does get “SLAPPed.”
Recently, new targets and tactics have strengthened SLAPPs’ impacts on societies. Now, SLAPPs may target advocacy organization funders as well as defendant’s lawyers and, in the U.S., SLAPPs can be used to obtain discovery and crucial documents, as well as getting third-party help in the process, Regan explained.
Holt said the net result of all of this activity is that companies that are most litigious, which often have the deepest pockets, and the companies that are most responsible for environmental destruction, also tend to be the ones that are most insulated from criticism.
“That’s an appalling state to be in, in a democracy.”
However, anti-SLAPP coalitions and growing efforts to protect against “abusive” lawsuits show that SLAPPs are not to be feared; they are to be fought.
“When civil society is able to speak with one voice, we are much stronger and we can do that now with these [lawyer] coalitions – we have far more strength and far greater capacity to be able to respond vigorously to the use of SLAPPs,” Holt said. “I think there is greater awareness and there is greater support available. We should now be operating at a stage where people feel more able to speak out.”