Australia’s biggest greenhouse gas emitter and one of Australia’s largest environmental advocacy groups have gone head-to-head in court on Wednesday in a legal battle that could have a significant impact on campaigns against Australia’s largest fossil fuel users.
The legal battle concerns the use of AGL Energy logos by Greenpeace Australia in a campaign that sought to highlight the fact that AGL Energy is Australia’s single largest emitter of greenhouse gas emissions.
Last month, Greenpeace launched a campaign that included advertisements and a dedicated website that labelled AGL Energy as “Australia’s Greatest Liability” – a pun on the AGL acronym – and which used AGL’s logos and replicated the energy company’s branding style.
Greenpeace argues that the campaign is justified as AGL Energy is by far Australia’s largest single emitter of greenhouse gas emissions. In the last financial year, AGL was responsible for more than 42 million tonnes of greenhouse gas emissions, mainly from the company’s fleet of coal fired generators, including Bayswater, Liddell and Loy Yang A.
AGL Energy has set itself a target of reaching zero net emissions by 2050 and is planning to spin-off its fossil fuel generators into a separate business as part of a planned demerger of the company announced earlier this year.
AGL commenced legal proceedings in the Federal Court to seek to prevent Greenpeace from using its branding, arguing that doing so was a breach of intellectual property right laws, and AGL had a right to protect its own logos and branding style.
AGL had sought an urgent court order in May to immediately prevent Greenpeace Australia from continuing to use AGL’s logos in its campaign, but the federal court declined to grant the injunction. The proceedings continued in front of federal court justice Burley on Wednesday.
Greenpeace argued that the use of AGL’s logo and branding style was allowable under fair-dealing provisions under copyright laws, including those relating to parody, and that the use of company branding in advocacy campaigns is an important aspect of freedom of speech, and that could provide an opportunity to provide campaigning groups with a greater ability to use company logos in advocacy campaigns.
Greenpeace Australia campaigner Glenn Walker told the court on Wednesday that the group had sought to use the campaign to pressure AGL to change its business practises, and that its ‘parody’ of the AGL logo was a legitimate tactic used by campaigners, through a practice known as ‘brand jamming’, to encourage AGL customers to call on the company to close its coal-fired power stations.
Walker conceded that the campaign would work to make the AGL brand “toxic”, but said that any such negative impact would be temporary, as AGL had the ability to remediate its brand, by undertaking changes to its business that reduced its fossil fuel consumption.
Greenpeace has sought to frame AGL’s legal proceedings as an attempt to limit the ability of advocacy groups to run campaigns against fossil fuel companies and compared AGL Energy’s legal action to a ‘strategic lawsuit against public participation’, otherwise known as a SLAPP suit.
“Freedom of speech is a fundamental component of any functioning democracy. In Australia there are ‘fair dealing’ exceptions to copyright in order to allow satire, parody and criticism”, Greenpeace Australia Pacific’s General Counsel Katrina Bullock said.
“If Greenpeace Australia Pacific successfully defends this legal attack, it could set a powerful precedent about how the ‘fair dealing’ exception is applied by the courts which will hopefully allow other charities, not for profits, comedians and members of the community to criticise, parody and satirise without fearing litigation,” Bullock added.
Counsel for AGL Energy told the court on Wednesday that the company was not seeking to stymie public debate but that it was taking legitimate action to protect its own intellectual property.
But during the hearings on Wednesday, counsel for AGL sought to challenge Greenpeace’s contention that the campaign amounted to parody, and suggested that the campaign had been designed to damage AGL’s business, including by prompting customers to switch to a different energy company.
Update: At the conclusion of the hearing on Wednesday evening, Federal Court Justice Burley declined to issue extemporaneous orders – orders made on the spot – but told parties he would endeavour to deliver a quick judgement to parties.