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Canberra, Australia – Greenpeace Australia Pacific will go up against Australia’s largest electricity generator AGL Energy Ltd in court on Wednesday, after AGL accused the environmental organisation of abusing copyright and trademark laws.
Greenpeace Australia Pacific used AGL’s logos in a satirical advertisement campaign launched in early May 2021. The campaign was developed to promote a new report from Greenpeace Australia Pacific that aimed to raise public awareness of the fact that AGL is Australia’s “biggest climate polluter”.
The campaign features AGL’s logo alongside that of Greenpeace. AGL’s legal team will argue in court that this breaches both trademark and copyright law in Australia.
Greenpeace Australia Pacific says that the ads are clearly satirical in nature, and that no one could be confused into thinking the materials are official AGL promotional material.
“By parodying the AGL brand in our ad campaign, we want to draw public attention to the fact that, while AGL presents a forward-facing, renewable-focused front to the public, it is responsible for more climate pollution than any other company in the country,” Greenpeace Australia Pacific Senior Campaigner, Glenn Walker told Al Jazeera.
“Despite being the biggest operator of coal-fired power stations in Australia, AGL enjoys an undeserved reputation as an organisation that is a renewable energy leader.
“The AGL brand is a false front, and a ripe target for satire.”
Australia’s “dirtiest polluter”
AGL generates and provides electricity in several states across Australia.
It provides power to nearly one-third of Australian households and has a generating capacity of more than 11,000 megawatts, representing about 20 percent of Australia’s National Energy Market.
But it relies heavily on coal-fired plants to generate that power.
As much as 85 percent of the company’s power comes from coal, according to its own data. Just 10 percent came from renewable energy in 2020.
Despite this, AGL, which is listed on the Australian Stock Exchange (ASX) increasingly promotes itself as an environmentally responsible company. Its publicity materials boast that it is “right behind renewables” and is “the biggest ASX-listed investor in renewable energy”.
Greenpeace Australia Pacific’s campaign is specifically targeting these claims. The group argues that AGL is actually “Australia’s biggest domestic contributor to climate change”, responsible for more than 42 million tonnes of greenhouse gas emissions in 2019-2020.
The claims are backed by data from the Australian Government’s Clean Energy Regulator. The agency’s National Greenhouse and Energy Reporting statistics show that AGL’s emissions represent more than 8 percent of Australia’s total emissions, more than twice the amount of Australia’s next biggest emitter.
Katrina Bullock, general counsel at Greenpeace Australia Pacific, says that it is notable that AGL is not denying these accusations.
“AGL are not refuting the headline claim that they’re Australia’s dirtiest polluter,” Bullock told Al Jazeera.
“AGL claims that the use of their logo in the [Greenpeace Australia Pacific] campaign was an abuse of trademark,” she said.
“But in Australia, trademark law is only breached if you’re using that particular mark in the course of trade. This is an environmental campaign that doesn’t sell a product or service.”
In addition, lawyers point out there is a “fair dealing exception” to copyright in Australia in order to allow satire and criticism. This means that branding elements protected by copyright, such as logos, can be used in the course of public comment.
Bullock described the case as a “silencing tactic used to silence criticism and suppress it”.
“This is strategic litigation against public participation (SLAPP),” said Rebecca Gilsenan, principal lawyer at Maurice Blackburn, the firm providing legal support to Greenpeace Australia Pacific.
“From a legal perspective, you have to ask yourself: is AGL really concerned about the use of their logo?” Gilsenan asked.
“Or is it because Greenpeace is calling them out for greenwashing?”
A SLAPP suit is a lawsuit that aims to intimidate critics into censoring themselves because of the high financial burden of mounting a legal defence. The primary goal is for the critical individual or organisation to abandon their attacks.
“SLAPP litigation is well known in other countries but it is not common in Australia,” Gilsenan explained. “These ‘SLAPP suits’ have a chilling effect on the campaign as well as anyone else who might want to criticise [AGL’s] activities.”
AGL refutes the claims, arguing the case is purely about preventing “the unlawful use of the AGL brand”.
“AGL has no intention of stifling public debate,” an AGL spokeswoman said in a comment to Al Jazeera. “We do, however, reserve our rights to defend our brand under Australian law.”
AGL initially contacted Greenpeace Australia Pacific one day after the campaign launch, sending a cease and desist letter. Legal action was launched soon after, with AGL requesting an urgent injunction against Greenpeace Australia Pacific to stop the use of AGL branding.
The matter was heard within several days, but the court rejected the application and did not order the materials to be taken down.
What happens next depends on the outcome of the June 2 hearing.
SLAPP suits rare in Australia
The last significant SLAPP suit in Australia was in 2005. Forestry company Gunns took 20 individuals and organisations to court for allegedly disrupting its business through vandalism and assault of workers.
Gunns claimed that the defendants had caused the company to lose jobs and profits. The defendants, who included then-Australian Greens leader Bob Brown, argued that they were simply protecting the environment.
Gunns eventually abandoned its claims against several of the critics after five years and the Supreme Court of Victoria ordered defendants’ costs be paid. All other claims were settled.
“The freedom to speak out, as well as the wellbeing of the forests, is compromised by this action,” Brown said in 2007. “Instead of the logging industry being arraigned [for breaching environmental law], it is those who want to uphold our national environment legislation who are in court.”
Only the Australian Capital Territory has legislation in place to discourage SLAPP suits.
Potentially powerful precedent
The outcome of the AGL vs Greenpeace Australia Pacific case could have a significant effect on public criticism in Australia.
“Winning this case would set a powerful precedent about how the fair dealing exception is used by the courts,” said Greenpeace Australia Pacific’s Bullock.
“This case could set what would be considered as fair use,” she explained. “This would allow people to satirise and parody without fearing litigation.”
Other environmental and climate organisations are watching developments closely. Thirteen groups, including the Australian Conservation Foundation and Friends of the Earth Australia, signed a letter to AGL in late May, calling on the company to drop legal action.
“We see this as a direct affront to free speech and the ability of our organisations to hold corporations to account on urgent climate action,” the letter said.
“We firmly believe it is critical that charities, not-for-profits, comedians and members of the community retain the right to criticise, parody and satirise corporations using their logo with the threat of litigation.”