Sydney, 3 June 2021: Greenpeace Australia Pacific faced down coal company AGL Energy in the Federal Court yesterday in a landmark intellectual property case which saw Greenpeace rely on the freedom of speech safeguard in the Copyright Act known as “fair dealing”.
AGL alleges that Greenpeace breached its intellectual property rights by using versions of the AGL logo in a campaign that identified AGL as Australia’s biggest climate polluter.
Greenpeace Australia Pacific CEO David Ritter, first to give evidence, spoke about Greenpeace’s motivations in launching a campaign against AGL, driven by the urgent need to protect the climate, and to persuade AGL to close its coal-burning operations by 2030.
Greenpeace senior campaigner Glenn Walker then took the stand, speaking about the specifics of the campaign against AGL, and why Greenpeace chose to use parody and satire in the campaign to criticise AGL’s greenwashing practices. Mr Walker spoke about the nature of parody, and how Greenpeace, as a campaigning organisation with a long history of corporate campaigns, is “famous, both in Australia and internationally” for running parodic and satirical campaigns of this nature against polluting corporations.
Walker spoke of the campaign attempting to make AGL’s brand “temporarily toxic”, and went on to talk about how the aim is to pressure AGL to switch to renewable energy, noting that Greenpeace would celebrate the company if it changed its course.
John Hennessy SC, acting for AGL, attempted to paint Greenpeace’s motivations in running a campaign of this nature as “educational services” and submitted that the organisation, a not-for-profit, sought to profit from the campaign. He argued that Greenpeace sought to capitalise on the “originality and popularity” of the AGL logo, intending to cause damage to AGL.
AGL’s arguments were roundly refuted by Neil Murray SC, acting for Greenpeace, who argued that Greenpeace Australia Pacific is a not for profit that is motivated by a desire to protect the environment and that AGL’s lawyers have tried to depict Greenpeace as something it is not.
Mr Murray also spoke to the urgent need for AGL to close its coal assets and switch to renewable energy saying, “This is not a frolic invented by Greenpeace Australia Pacific. This is a serious issue.”
He pointed to AGL’s own documents, which admit that keeping AGL’s coal-burning power station Loy Yang A running until its current 2048 closure date is inconsistent with limiting dangerous global heating to 1.5 degrees.
“The conduct of the campaign to cause people to be critical of AGL for continuing to operate coal until 2048 in the hope that that criticism will create pressure on AGL to change is a legitimate goal: initiating public debate for a beneficial cause,” Murray said. “To punish a charity for doing that would be unjust.”
The case has now adjourned for Justice Stephen Burley to make a judgment.
Prior to the hearing, Greenpeace Australia Pacific and other charitable and advocacy groups raised serious concerns about AGL’s use of litigation to stifle the campaign to close its polluting coal-burning operations.
Katrina Bullock, General Counsel for Greenpeace Australia Pacific, said she believes that “the AGL v Greenpeace Australia Pacific intellectual property case shows the manner in which fossil fuel companies use the law in an attempt to intimidate their critics.”
“There has been a growing trend of strategic lawsuits against public participation, or SLAPP suits, which are brought by powerful entities against advocacy organisations or activists, to intimidate and censor them,” she said.
Greenpeace Australia Pacific was represented by Maurice Blackburn, Frances St John and Neil Murray SC of Tenth Floor Chambers. Mr Murray has been recognised as one of Australia’s leading intellectual property lawyers and won the landmark EMI v Larrikin (the Down Under/Kookaburra case) about the reproduction of a substantial part of a well-known children’s song in Men At Work’s iconic rock song.