Intimidation lawsuits on the rise US ruling could mean the end of Greenpeace

A US court has ordered Greenpeace to pay 660 million dollars in damages for protest actions against a pipeline project. Lawsuits against NGOs and the media are systematic. The EU has passed a law against this.

After the ruling, the perseverance slogan: "We will not give in. We will not be silenced." So says Kristin Casper, General Counsel of Greenpeace International.

The company suing is Energy Transfer ET, which is pushing ahead with a pipeline project that is being opposed by a broad protest movement. ET holds Greenpeace responsible for having caused great economic damage with defamatory statements.

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The decision of the jury court in Morton County, North Dakota, is not yet final. However, the fine of 660 million dollars would very likely bankrupt Greenpeace.

In 2023, the environmental organization received 84 million dollars in donations according to its annual report. Its total assets amounted to 78 million dollars at the end of 2023.

SLAPP - Silencing NGOs with lawsuits

For Greenpeace, it is clear that this case is a SLAPP lawsuit. The abbreviation stands for Strategic Lawsuit Against Public Participation, i.e. a strategic legal case against public participation. From the perspective of the defendants, these are initiated for the purpose of silencing them. The fact that the English verb means to slap may have influenced the choice of acronym.

Greenpeace is not alone. For years, a Malaysian billionaire family fought the Bruno Manser Fund with lawsuits. Their aim was to get rid of the NGO's reports on illegal logging in the rainforest. In 2022, the public prosecutor's office in Basel declared all allegations against the Bruno Manser Fund to be unfounded and discontinued the proceedings, as reported by the Basler Zeitung.

Media titles or individual journalists are also often targeted by SLAPP plaintiffs: For example, the Russian oligarch Roman Abramovich filed a lawsuit against Tamedia to prevent its media from reporting on his application for a residence permit in Switzerland. He was turned down in court, as was his attempt to settle in Switzerland.

Even the threat of legal action can have an effect

The organization Coalition against SLAPPS in Europe has counted over 1,000 cases of intimidation lawsuits on the old continent alone since 2010 and a significant increase since 2016. In its report, it counts 166 new cases for 2023 alone.

However, SLAPP proceedings do not have to be promising to be effective. Even defending against a baseless accusation can cost those affected a lot of money and time. For example, a financially strong plaintiff can intimidate an organization or media professional by involving them in a lengthy legal dispute.

A particularly drastic example is the Maltese investigative journalist Daphne Caruana Galizia, who was murdered in 2017 and against whom more than 40 lawsuits were pending at the time of her death, all of which were directed against her work.

For smaller media outlets or organizations, the mere threat of a lawsuit can cause them to withdraw a publication. This is what happened to the Zurich online medium tsüri.ch. It deleted an article in which it criticized an entrepreneur. Although they were convinced of the journalistic work - i.e. that it had reported the facts correctly - they retracted the publication in order to avoid a possible lawsuit. As a small media company, they could not afford such a lawsuit, said Co-Managing Director Elio Donauer afterwards to the media magazine persönlich.com.

EU has an anti-SLAPP law, Switzerland does not

The EU brought the Anti-SLAPP Directive into force in summer 2024. This protects natural and legal persons affected by abusive lawsuits. Courts are entitled to dismiss abusive charges at the earliest possible stage. In addition, the plaintiff must bear the costs of the proceedings.

In Switzerland, National Councillor Florence Brenzikofer, Greens/BL, submitted an interpellation to the Federal Council calling for a corresponding regulation for Switzerland. In its response, the national government states that the current laws already make it possible to ward off manifestly abusive lawsuits. Additional measures in this area are not necessary.

The EU's Anti-SLAPP Directive is the instrument that Greenpeace is using to defend itself against Energy Transfer. In the Netherlands, it sued the company a month ago over legal cases with no merit. The environmental organization is demanding that the US company reimburse it for all costs "incurred as a result of ET's successive, unfounded lawsuits", according to a statement from Greenpeace International.

Greenpeace's counterclaim is the first test of the EU's Anti-SLAPP Directive. And this in a case that sets new standards with its amount in dispute and threatens the existence of one of the world's best-known NGOs.