SLAPPs and chills
This article originally appeared in Index on Censorship magazine 01/99 This year’s round-up of television troubles concentrates specifically on the bullying of broadcasters and asks: are they being SLAPPed around? Julian Petley reports SLAPPS stands for Strategic Lawsuits against Public Participation. The term was first coined by two US academics who noticed that powerful corporate […]
22 Jan 10

This article originally appeared in Index on Censorship magazine 01/99

This year’s round-up of television troubles concentrates specifically on the bullying of broadcasters and asks: are they being SLAPPed around? Julian Petley reports
SLAPPS stands for Strategic Lawsuits against Public Participation. The term was first coined by two US academics who noticed that powerful corporate interests were increasingly threatening environmental campaigners with lawsuits for defamation, conspiracy, invasion of privacy, interference with business and so on. These cases rarely came to court, but nor were they intended to; rather, SLAPPS are a form of strategic legal intimidation or gamesmanship, designed to frighten, harass and distract actual critics, and to discourage potential ones from even voicing their views in the first place. Is this tactic now spreading from the USA and beyond the environmental arena? Let’s have a look at the broadcasting year in this particular light.

Certainly, those covering environmental protests are increasingly
feeling the heavy hand of the law. Indeed so serious is the situation that Patricia McKenna, a UK Member of the European Parliament, has tabled a question at the European Parliament accusing the police of mistreating members of the National Union of Journalists ‘by not
recognising their press cards, arresting them for trespass or obstruction or even, under the Harassment Act (intended to prevent stalking), assaulting them, holding them until deadlines are passed, preventing them from taking pictures, confiscating their photographs with court orders, and erasing their video material, as well as restricting their public access during protests’.

This year a charge of obstruction against a student cameraman covering the 1997 Manchester Airport protest for Channel 5’s What’s the Story? came to light in January when it was dropped after the Crown Prosecution Service offered no evidence, but in August Ben Edwards of Eye Contact, a Bristol video news agency, was arrested while filming a demonstration at a genetically modified maize site in south Devon.

While he was under arrest, his house was searched by Bristol police who removed computer discs, documents and tapes. He was released on bail without charge, but his equipment remained confiscated in what can only be construed as a crude attempt to put him out of business.

Meanwhile, Roddy Mansfield, a video journalist with the Oxford-based Undercurrents group, has been arrested no fewer than six times
and, with the aid of the NU], is now suing the Metropolitan Police. No wonder we see so little coverage of environmental protests on television.

A classic SLAPPS story emerged in June 1997, when Franny
Armstrong revealed that both Channel 4 and the BBC were unwilling to show her remarkable film McLibel: Two Worlds Collide for fear of- yes, you guessed -libel. And this in spite of the fact that the once notoriously litigious McDonalds appears to have been somewhat chastened by their lengthy and bruising court encounter with Helen Steel and Dave Morris. Still, as long as broadcasters tremble at the burger giant’s erstwhile fearsome reputation, the SLAPP syndrome is still doing its dirty work.

In March, a real live libel case came, albeit very briefly, to court, with
Marks and Spencer versus Granada over the 1996 TVorld in Action
programme “St Michael: Has the Halo Slipped?” which revealed that one of their Moroccan suppliers exploited child labour and labelled garments “Made in England”. M&S insisted that the programme implied that it knew of these abuses; Granada denied this and argued that the programme demonstrated merely that the company had failed to monitor its suppliers properly. On the first day of what was expected to be a long and complex trial, Mr Justice Popplewell simply asked the jury whether they thought “Mr Average Viewer” would have taken the progrannne to mean what M&S claimed it meant.

Afrer a short deliberation the jury supported the M&S interpretation, and Granada, not permitted to present any evidence in its defence, was forced to concede and to pay £700,000 (cUS$1.2 m) in costs and damages.

This “sudden death” procedure may cut legal costs by avoiding lengthy libel trials, but such a crudely “common-sensical” approach is hardly best suited to settling highly complex matters of fact and interpretation.

Britain’s libel laws which, unlike those of many other countries, place
the onus on the defendant to prove truth or show fair comment, not only put the defendant at a considerable disadvantage vis-ii-vis the plaintiff, they already exert what has been called a considerable “chilling effect” on investigative journalism. This latest judgement threatens to lower the temperature to freezing point. As Ian McBride, Granada’s managing editor of factual programmes put it: “To have to ponder and second guess our fate in a short-cut route through the libel roulette puts another burden and potential hazard in the way of inquiring, challenging journalism and the communication of important, if uncomfortable, truths to the public.”

Corporate players in this game have also been busily exploiting the
various broadcasting complaints systems. In February, the BBC
Programme Complaints Bulletin revealed that a number of complaints from Sir Richard Evans, chief executive of British Aerospace, about a June 1997 Newsnight report on the Eurofighter, had been upheld. In this context it’s also worth noting that in December 1997, British Aerospace had refused to co-operate with, and then threatened to sue, a Panorama progrannne on the same subject.

Just how sensitive big business has become to journalistic scrutiny was revealed in August when the chairmen of 10 of the country’s biggest companies, including, apparently — “apparently” since the “Watchdog Ten” are peculiarly coy about their composition and activities — Ford, the AA, Airtours, BT, DSG Retail (owners of the retail chains Dixons and PC World), Hotpoint and Procter and Gamble, met to discuss a plan of campaign against the BBC’s Watchdog. Since developing its journalistic teeth, the programme has not shirked taking on the big High Street names, including the above, and the response has been a barrage of complaints, 12 ofwhich have been upheld by the Programme Complaints Unit over the past four years. It’s also worth noting that this year the Broadcasting Standards Commission has entertained (and upheld or partly upheld) complaints about Watchdog from Ford, Dixons and Airtours. Another busy corporate complainant to both the BSC and the Independent Television Commission has been Barratt Developments, a construction company that seems to’ be particularly sensitive to programmes about houses it has built on brownfield [formerly industrial or derelict land] sites.

Nobody, of course, can or should defend stories that don’t stand up.
However, whether the above exan1ples constitute proper use of the complaints systems — especially if complaints are accompanied by threats of legal action — is certainly open to question. Furthermore, ever since the crucial 1993 action between Derbyshire County Council and Times Newspapers, a public authority in Britain cannot bring a libel action because this would inhibit freedom of political speech. Yet, as the powers of public authorities, including governments, daily drain away, and those of big business increase in direct proportion, there is certainly an argument that the definition of what actually constitutes “political speech” needs to be widened.

It could convincingly be argued that the major political forces in the world today are no longer national governments but transnational corporations. In such a situation, and especially given large companies’ increasing willingness to resort to SLAPPs and other “chilling” tactics, is it not time that their legal arsenal was depleted? Would not taking away their much-abused ability to exploit our oppressive and archaic libel laws be an excellent place to start? They do, after all, have other means with which to defend themselves.