SLAPPS - STRATEGIC LAWSUITS AGAINST PUBLIC PARTICIPATION

 

In recent years many Western countries have seen our law courts used by the very rich and powerful, many (most?) of whom have gained their wealth through means they would prefer the public didn’t know about, to silence those who have been looking too closely.

Perhaps the most recent and widely publicised case of this recently has been the English case brought by Arron Banks against Carole Cadwallader, claiming damages for libel in respect of some remarks she made hinting that he might have had some Russian connections. What we know about Mr Banks suggests that he is a very wealthy fellow indeed, whereas his target was a well-known and very active investigative journalist, a career that is more likely to get you shot than to gather wealth.

Instead of suing the media who published his target's remarks, Ted Talks and the Guardian, he attacked her personally. As we know, she has successfully defended herself, but at enormous personal and emotional cost and huge expenditure, funded by outraged citizens who rallied to help at a time when everyone is under strain.

The case illustrates a prime feature of a SLAPP; there is usually a huge imbalance of financial muscle. In addition to this, classic features are:

The case is brought by an individual or corporation with something to hide.

As it says on the tin, the target is public participation in the exposure of wrongdoing.

The remedy is usually disproportionate and the costs enormous.

There is often no basis whatsoever for the case, or perhaps the case is mainly, but not entirely, unfounded. Often there is no damage of the sort a court will regard as appropriate for compensation; by that I mean reputational damage caused by the disclosure of criminal or some other gross misconduct. In Mr Banks’ case his links with various Russian individuals were already well known and indeed had been publicised by himself.

SLAPPs first came to public attention in the late 1980s in the United States, famously the land of the free, including the Constitutional right to freedom of speech. Judges were recognising court cases that breached this right, with an early case going to the New York Supreme Court. The ruling was based not on any statute, but on the common law power of judges to throw out cases they considered vexatious.

Following the New York case, legislators there and elsewhere got interested. Currently there is legislation in thirty one States in America, plus Quebec, British Columbia and Ontario in Canada, plus the Australian Capital Territory.

In other jurisdictions it’s still down to judges deeming cases to be vexatious. This happened in the South African case of Mineral Sands, where attorneys got sued. In the Republic of Ireland a decision is awaited in a major case re a Dublin housing development, where a property developer is suing.

The advantage of legislation, apart from respecting democratic lawmaking, is to have clear rules about what is allowed for judges to follow. The European Commission has recognised this and has a team of experts working on a draft Directive that will basically define what is a SLAPP and set out detailed rules.

Sadly, it’s because of another “Brexit benefit” that the Scottish legal system will have to rely on the judge made power re vexatious litigations. Also, here it’s mainly been used by powerful people and even the State to silence folk like Robbie the Pict.

If you’re wondering how this is all relevant to the West Coast, according to what has been published in the Oban Times and elsewhere on social media it seems that we have one of the first Scottish SLAPPs here on our doorstep in Oban Sheriff Court.

MOWI, one of the biggest salmon farming companies in the World, are suing the lone environmental activist Don Staniford to stop him from taking photographs of what he claims are instances of animal welfare abuse, mortality and pollution in their sites. To do this they are seeking to place exclusion zones around each and every one of their dozens of fish farms.

Let’s look at the defining features of a SLAPP, as identified above.

Brought by a corporation with something to hide? Well, some of Staniford’s photographs are not pretty.

A huge imbalance of money? Tick.

A basis for the case? This one is very interesting and extremely important to every one of us who ventures, as I do, onto the water in a small boat. I suggest that there can be no basis whatsoever for excluding anyone from being on the open sea.

Since King Cnut demonstrated to his people, about a thousand years ago, it’s been recognised that nobody can control the sea. Less whimsically, the rights that we all, as members of the public have, to navigate on the surface of the sea are absolutely fundamental to our constitutional law. You can check the position here:

Scottish Law Commission

The Crown Estate may give an individual, or a company, a licence to place an anchor on the seabed, but they do not have the power to interfere with what goes on above. Legally they hold the seabed, a public asset, in trust for all of us and they cannot violate that trust. Indeed, the licences they give out expressly reserve the rights of Her Majesty and all the rest of us. We have rights not just to navigate, but to fish, to swim and for recreation and leisure.

As we now have something approaching two hundred massive floating installations along the “Aquaculture Coast” this case has huge implications. Already we are seeing the companies placing lines of buoys well outside the actual fish cages, in what looks like an act of colonialism. Make no mistake, with aquaculture we’re seeing a Twenty first Century land grab!

Grateful thanks to The European Circuit for the seminar on 11 July, with speakers Dr Roya Sangi, Paul McGarry SC, Greg Callus QC and Nick Vineall QC