Silencing Dissent

Big companies are using the courts to stifle their critics

By George Monbiot. Published in the Guardian 21st August 1997.

Every month, the weapons mobilized in the public relations battle over the future of the planet become more sophisticated. A few weeks ago, a leak from the PR company Burston-Marsteller revealed that it has been advising biotechnology companies to “stay off the killing field” of the environment and human health, as “the industry cannot be expected to prevail in public opposition to adversarial voices on these issues.” Other means had to be found of confronting opposition to genetic engineering.

This week, perhaps in response to similar advice, BP shifted the debate about its oil prospecting work away from the Atlantic frontier and into the courts. On Monday, it began a suit against Greenpeace for the £1.4 million it claimed it had lost as a result of the group’s occupation of a test-drilling rig near the Shetland Islands. If the organization would not pay, BP said, it would hold three members of Greenpeace’s staff personally liable. By Tuesday evening, the company was offering to abandon the suit if Greenpeace promised to keep out of its oilfields.

BP has been deploying smart PR bombs throughout this ritual conflict. While Greenpeace sought to draw attention to climate change and the dumping of toxic residues on the ocean floor, BP concentrated on the safety of the activists chained to the oil rig, announcing that it would try to pull them off only if their lives were in danger. It succeeded both in drawing the press away from the critical issues and in presenting itself as a compassionate company, which puts human welfare ahead of filthy lucre. The sherriff evicting protesters at Manchester airport deployed precisely the same tactic – the tunnellers, he said, were a danger to themselves, who had to be removed for their own good.

BP’s lawsuit, which it delayed until police had removed the activists from the public eye, enabled it to drag the debate still further away from environmental arguments. Public discussion shifted to Greenpeace’s assets and whether or not they should or could be seized. BP could distance itself from the dispute – arguing that the matter was now in the hands of the courts – while ensuring that the moral pressure remained on Greenpeace: if it didn’t pay up, it would expose its own staff to the suit. Now it can pick up the mantle of magnanimity, while retaining a powerful new missile (the threat of reopening the case) with which to deter its opponents.

Had BP pursued its suit, seized Greenpeace’s assets and, as some people predicted, wiped the organization out, it would have found itself portrayed as an oceanic shark, snapping up defenceless tiddlers. But suits of this nature are seldom designed to succeed. In the United States they are so common that they have acquired a name of their own: “Strategic Lawsuits Against Public Participation”, and the emphasis is firmly on the “Strategic”. About three-quarters of the charges of conspiracy, defamation or criminal liability big companies pursue against American activists are dropped or thrown out of court, often after years of litigation. But both the charges themselves and the costs of fighting a case tend to stifle dissent, scaring protestors into mute acquiescence.

The first major case of this kind in Britain was pursued by the Department of Transport against people opposing its cutting through Twyford Down. The department’s injunction named as many campaigners as it could identify, some of whom had only the most fleeting involvement in the protest. They were held “jointly and severally liable” for the DoT’s legal costs and damages – which amounted to around £2 million. The department pursued them for three years, its demands for payment gradually falling from tens of thousands of pounds each, to one thousand, to five hundred, before it quietly dropped the case altogether. But the lawsuit worked. Hundreds of people with assets kept away from Twyford Down, worried that they too might find themselves subject to the costs order. The campaign was left largely to the property-less and dispossessed, which helped the DoT to portray its opponents as a bunch of workshy trouble-makers, only protesting because they had nothing better to do.

The injunction’s success, of course, was dependant on its failure. The last thing the department wanted to do was to seize the home of a respectable taxpayer. McDonalds twice flew senior managers over to England to try to stop the libel case it had initiated against two penniless protestors, but the defendants insisted on fighting to the end. Though they lost on several points of law, they won a resounding moral victory, as McDonalds was forced to carry out its threat to crush the butterfly on the wheel.

BP’s lawsuit is one of many indications of an increasingly legalistic approach to public debate. Companies opposed by animal rights protesters are now using the anti-stalking laws to stop them handing leaflets to their customers. Construction firms have used secondary picketing legislation to deter roads protestors, while the 1994 Criminal Justice Act and the 1986 Public Order Act provide endless opportunities for criminalizing dissent. New legislation in the United States offers even more effective means of suppressing free speech: 14 states have now adopted bizarre “Food Disparagement Acts”, banning insulting remarks about perishable food. Last year a group of ranchers filed a suit against the Oprah Winfrey Show, after Oprah expressed her horror at the practice of feeding ruminant offal to cattle. She has kept her mouth firmly sealed on this topic (if on no other) ever since.

As both British and American laws tend to be more effective at protecting private property than public assets, the scope for retaliatory counter-suits is limited. Instead, environmentalists should continue to call the corporations’ bluff, force them to pursue their suits and let them suffer the public humiliation of a brutal victory. Only then might the big companies be inclined to test their case not in the stuffy enclave of the courts, but in the fresh air and open seas of public debate.