The Cost of Being Heard
The Old Bailey, London. Wikimedia Commons, used without permission.
On 15 April 2024, the Federal Court issued its verdict in one of the most recent high-profile cases in Australia. The judge, Justice Michael Lee, on the civil balance of probabilities, found that Bruce Lehrmann sexually assaulted Brittany Higgins in the Parliament House in 2019 and was not defamed by Channel Ten and the journalist Lisa Wilkinson. The judgment in this case not only brought an unequivocal vindication of Brittany Higgins, but it also sparked a discussion about defamation laws in Australia. In retrospection, one may ask whether that trial should ever happen. Lawsuits that aim to silence, censor. and intimidate defendants often come at a great emotional and financial cost. Perhaps it is time to start questioning the current state of the Australian anti-SLAPP laws.
What is a SLAPP?
SLAPP is a term coined by University of Denver Professors Penelope Canaan and George Pring. It stands for Strategic Lawsuit against Public Participation. The goal of SLAPP is to ‘stop citizens from exercising their political rights or punish them for doing so’. In other words, it is a lawsuit whose main objective is to take away another person’s freedom of speech through the abuse of the legal proceedings. SLAPPs may not be effective in terms of achieving a favourable verdict to the plaintiff, but it is not what they truly intend. They aim to destabilize their targets and their future public participation. SLAPPS can masquerade as an ordinary lawsuit but they send a message that there is a cost that comes with speaking out.
In Australia, SLAPP suits became more frequent in the 1990s and they have been mostly defamation lawsuits against activists. The most notorious example is the case in Victoria, involving the Bannockburn Yellowgum Actions Group, who opposed Barwon Water. [1] The chief executive of Barwon Water was Frank De Stefano and he took an objection to the sticker produced by the Group which said ‘Barwon Water, Frankly Foul’ and sued for defamation. [2] The case ended with the Group apologising and paying $10, 000, just to end the costly legal proceedings. [3]
Years later, one of the most widely discussed examples of Australian SLAPP lawsuit is the case of Gunns Ltd v Marr. [4] It was brought up by the Tasmanian public company, engaged in the timber industry, Gunns Ltd, in 2004. It was lodged in response to a campaign against the logging and wood-chipping of old growth forest, the burning of forests and the use of chemical substances as a part of a standard forestry practice. The lawsuit ‘claimed damages, including aggravated and exemplary damages, injunctions and costs for disruption of the plaintiffs’ businesses allegedly caused by various tortious actions of the defendants’. The legal saga between the Gunns and the other parties involved in the case lasted until 2009, at some point entailing defamation laws. Ultimately, it ended in the lawsuit being discontinued. Nevertheless, the defendants spent years in the court.
The Gunns’ litigation is an example of a SLAPP suit and shows how such judicial proceedings can involve multiple different branches of law, not only defamation, but also industrial and commercial law. However, despite Australia having its history involving SLAPP suits, it is a country in which most states still do not have a specified anti-SLAPP legislation.
Anti-SLAPP laws in Australia
Anti-SLAPP laws, legislation aiming to avert the abuse of courts, is an area of law that is still significantly unaddressed. Ultimately, it remains a balancing act which can eventuate paradoxical consequences. The justice system must guarantee the right to pursue a legal action when one wants to seek it for the harm that was imposed upon them. Nevertheless, there is a difference between the pursuit of justice and the thirst for vengeance. One of the most significant questions in this context is how it can be determined. It is a duty of the legal system to ensure freedom of speech and the right to contribute to the public debate.
One of the most meaningful Australian legislations in this matter is the Protection of Public Participation Act 2008 (ACT), which aims to ‘protect public participation, and discourage certain civil proceedings that a reasonable person would consider interfere with engagement in public participation’. Respectively, the states of South Australia and Victoria have proposed drafts of similar legislation, which have yet to be enacted.
Most of the legislative pieces that could counter SLAPPs are a matter of interpretation. R. 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) against ‘frivolous and vexatious proceedings’ states that if a proceeding are frivolous/vexatious, no reasonable cause of action is disclosed or they are an abuse of the process of the court, the case may be dismissed. The question is, how The Constitution itself stands in the defence of the freedom of speech of Australians. Notably, the case of Nationwide News Pty Ltd v Wills [1992] suggests that the Constitution may be paramount in obviate SLAPP lawsuits. Nonetheless, the majority of states in Australia still do not have a specified legislative solution against SLAPPs.
Conclusion
In conclusion, SLAPPs are an issue that remains largely unaddressed. As always, the most affected are those at their most vulnerable, often with a substantial power imbalance which speaks volumes to the problematic circumstances that victims undergo. Thus, there will usually be cases that involve abuses of power, whether it is by the company or by the individual as evident in the aforementioned examples. Australia has only one jurisdiction with specified anti-SLAPP laws.
It is the right thing to take into consideration the rights of the plaintiff, but it is just as important to do the same with the rights of the defendant. Purpose-built legislation is of value. Should the trial between Lehrmann and Channel Ten have ever happened The legal proceedings about these allegations lasted for years. Brittany Higgins may not be the first person subjected to litigation abuse, but, in accordance with the letter of the law, our system should make an effort to ensure that she will be the last.