Should activists who break the law be punished

The anti-coal activist whose hoax press release temporarily wiped $300 million off the value of an Australian mining company has walked free from court. While his supporters hailed it as a victory for environmental protest, the case raises important questions about what happens when activism goes too far . . .  and how corporations should respond.

Jonathan Moylan pleaded guilty to issuing a bogus media statement claiming the ANZ bank had withdrawn funding for Whitehaven’s open cut coal mine in northern New South Wales. The statement caused a flurry of share trading and some investors lost large amounts of money before the hoax was exposed and market quickly recovered.

In court Moylan claimed he was surprised that some media outlets had treated the fake report seriously, and his lawyer argued that the journalists were “more responsible for the effect on the market” and should have checked the veracity of the statement. But that rang hollow considering the fact that some journalists did ring the fake number on the statement and Moylan, pretending to be an ANZ media spokesperson, confirmed its accuracy. Judge David Davies rejected this defence as “hypocritical” but concluded that Moylan was “not a criminal in the classic sense.”  He told the 26-year-old: “You did it for motives that I accept were sincerely held by you, even though your methods of achieving them were wrong.”  And so Moylan walked free from court with a suspended prison sentence and a good behaviour bond.

Yet is that good enough?  In a naive apologia written for the Guardian online, Moylan said he was not trying to crash the market but was trying to highlight the bank funding of the mine.  “Today I bear the consequences of that decision,” he wrote.  But of course it is the investors who bore the real consequences.

Moylan already had six prior convictions relating to environmental protest actions regarding a coal-loader, an aluminium smelter and a wood chipping mill. How often can an activist break the law and still receive the benefit of a forgiving legal system?  Contrast this with the case in the USA earlier this year when an 84-year-old nun appeared in court for breaking into a nuclear weapons plans and daubing it with biblical references.  Like Moylan, she and her co-defendants argued it was a non-violent protest, but the American judge was much less lenient and sentenced her to three years in prison.

So what is the best corporate strategy when threatened with an illegal protest? State your case openly and boldly; leave it to the police; and don’t listen to the lawyers who advise legal action, such as an injunction. Any organization planning to use legal muscle against activists – even if they are breaking the law – would be well advised to remember the biblical battle between David and Goliath.  No-one recalls what they were fighting about, but everyone knows who won and who was the villain of the piece. Yet is that good enough?  In a naive apologia written for the Guardian online, Moylan said he was not trying to crash the market but was trying to highlight the bank funding of the mine.  “Today I bear the consequences of that decision,” he wrote.  But of course it is the investors who bore the real consequences.

Moylan already had six prior convictions relating to environmental protest actions regarding a coal-loader, an aluminium smelter and a wood chipping mill. How often can an activist break the law and still receive the benefit of a forgiving legal system?  Contrast this with the case in the USA earlier this year when an 84-year-old nun appeared in court for breaking into a nuclear weapons plans and daubing it with biblical references.  Like Moylan, she and her co-defendants argued it was a non-violent protest, but the American judge was much less lenient and sentenced her to three years in prison.

So what is the best corporate strategy when threatened with an illegal protest? State your case openly and boldly; leave it to the police; and don’t listen to the lawyers who advise legal action, such as an injunction. Any organization planning to use legal muscle against activists – even if they are breaking the law – would be well advised to remember the biblical battle between David and Goliath.  No-one recalls what they were fighting about, but everyone knows who won and who was the villain of the piece.

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About managingoutcomes

Issue and crisis management expert
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