A powerful vote for free speech – thanks to Shell

by Daniel Simons

December 6, 2012

As a Greenpeace lawyer, people often ask me whether I don’t feel hopeless, seeing how wealthy polluters can adjust laws to serve their needs. But a recent ruling makes me optimistic that might isnt always right.

On a frigid morning in September, polar bears wandered through the forecourt of one of Shell’s largest fuel stations in the Netherlands. At the same time, activists hung bicycle locks around the fuel nozzles, while others explained that they were stopping fuel sales in protest against Shells plans to drill for oil in the Arctic. Over the course of the morning, 72 out of about 600 Shell petrol stations in the country were similarly ‘frozen’.

Shell immediately filed a 100-page legal complaint. The suit had obviously been prepared well in advance, ready to stop those irksome environmentalists once and for all. The company wanted a court order permanently banning actions by Greenpeace or its sympathisers within 500 metres of all Shell properties worldwide, with an automatic penalty of 1 million per breach.

Shell’s argument went roughly like this:

1) The action presented an unacceptable risk to its employees and customers.

2) The actions needed to be stopped to prevent further financial harm.

We didn’t hear much more about safety after Shell was asked to explain exactly what danger it was afraid of. And for a company that made a $31 billion profit last year, the short action didn’t exactly break the bank. But the second argument raises an important question: does the right to make money automatically trump the right to criticise?

The answer is no. A journalist who truthfully exposes a scandal at a corporation can’t be sued for the resulting damages, no matter how substantial they are. Workers can strike to express a grievance, even though it means loss of profit for their employer.

The judge agreed, in pretty strong terms. He said that direct action is a legitimate way of expressing dissent, as long as it’s proportionate and you’ve tried to make your point in another way first. The mere fact that an action causes inconvenience, or even financial loss, does not automatically make it unlawful. A company like Shell that engages in controversial acts such as Arctic oil drilling, “must expect that action will be taken to try to persuade it to change its views”.

Judge Jongeneel refused to grant the order Shell had requested. Instead, he ruled that Greenpeace must respect certain ‘outer limits’. Actions that interrupt the sale of fuel should not last more than one hour, for example. The order is limited to the Netherlands and lasts for 6 months.

The judgement is far from a carte blanche to take disruptive action against any business based on a viewpoint – nor should it be. At Greenpeace we regard direct action as a last resort, if environmental harm cannot be challenged effectively in another way. The judge heard our evidence and clearly understood that this was a classic example of such a situation. Shell has ignored repeated attempts to change its mind on Arctic drilling, and instead flexed its financial muscles to obtain licences and tie its critics up in lawsuits.

What began as a desperate attempt by Shell to stem the tide of criticism generated by our Arctic campaign has now ended in an important precedent for freedom of expression. Sometimes, things work out for the little guys.

>> Download the translation of the judgement.

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