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The outcome of a court case in the Netherlands could shape the right to protest around the globe for decades to come, campaigners have warned, as figures show a dramatic rise in legal action taken by fossil fuel companies against activists and journalists.
Greenpeace International is using a recently introduced EU directive to try to reclaim costs and damages it incurred when a US jury decided it should pay the oil pipeline corporation Energy Transfer more than $660m in damages earlier this year.
The case, which opened on Wednesday in Amsterdam, is the latest round in an increasingly bitter dispute between activists, journalists and free speech groups and big corporations – which campaigners claim are using more and more aggressive legal tactics to try to silence them.
Mads Christensen, the executive director of Greenpeace International, said that after losing the argument in the “court of public opinion”, fossil fuel corporations were increasingly “weaponising courtrooms” in an attempt to silence their critics.
He added that this week’s case was the start of a “fightback” by civil society groups determined to defend the democratic right to protest and free speech.
Experts say these so-called Slapp [strategic lawsuits against public participation] cases are on the rise across the board. The Coalition Against Slapps in Europe (Case) has found a year-on-year rise in such cases over the past decade and has identified more than 1,000 such cases between 2010 and 2023.
“A ruling informed by the new EU anti-Slapp directive may set a precedent that could turn the tide on legal bullying and provide a legal shield for campaigners now and in future,” said Christensen. “Something absolutely vital is at stake here: people’s ability to hold fossil fuel giants to account for the devastation they’re causing.”
Greenpeace says it has faced five major legal challenges from oil companies over the past two years in Europe and the US, which it claims were aimed not necessarily at winning in court, but rather at draining resources and crushing dissent.
Charlie Holt, the European lead for Global Climate Legal Defense (CliDef) and member of Case, said these cases were having a chilling effect not just on individual campaign groups but on the wider democratic process.
“These cases have a dual impact,” he said. “On the one hand, they have a devastating effect on the individual campaigner, reporter or organisation, but also they have this systemic impact on democracy because they work to block accountability and shut down information about corporations, politicians or other powerful individuals or groups.”
Holt said the rise of the cases over the past decade was due in part to an increased polarisation in society. “Previously a large-scale civil lawsuit would have been viewed as ill-advised for big corporations because it was understood to risk a major reputational backlash, whereas I think in an era of intense polarisation, it’s easier to discredit and isolate the target of the attack.”
He said the trend also reflected the growing power of corporations in the global economy. “The costs and the sheer scale of these cases are enormous but giant corporations are able to absorb that … these cases feed off the wider imbalance between the corporate claimant and the defendant – the wider that imbalance, the more effective they will be.”
The hearing in Amsterdam is the start of what experts expect to be a long legal process.
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Greenpeace is asking for all costs and damages from the case in North Dakota – which is ongoing – to be paid by Energy Transfer Partners, a Dallas-based oil and gas company worth almost $70bn. It had sued Greenpeace alleging defamation and orchestrating criminal behaviour by protesters at the Dakota Access pipeline in 2016 and 2017, claiming the organisation “incited” people to protest by using a “misinformation campaign”.
Energy Transfer did not respond to a request for comment but following the jury’s decision in the North Dakota case the company thanked the judge and jury and said: “While we are pleased that Greenpeace has been held accountable for their actions against us, this win is really for the people of Mandan and throughout North Dakota who had to live through the daily harassment and disruptions caused by the protesters who were funded and trained by Greenpeace. It is also a win for all law-abiding Americans who understand the difference between the right to free speech and breaking the law. That the disrupters have been held responsible is a win for all of us.”
Trey Cox, Energy Transfer’s counsel for the case, said the jury’s verdict was “resounding” and showed Greenpeace’s actions had been unlawful. “It is also a day of celebration for the constitution, the state of North Dakota and Energy Transfer,” he said.
Activists from more than 30 free speech and civil society groups gathered outside the court in Amsterdam at the start of the hearing to call on governments across the EU to honour the new directive and transpose it into national law.
Christensen said: “We didn’t let legal threats or arrests … and we won’t let corporate lawyers stop us now. We’re ready to fight back, and this groundbreaking legal case is just the beginning.”
