The quality of the mass media’s reporting on the landmark Biowatch case on GMOs has been thoroughly one-sided and inaccurate, writes advocate Donrich Jordaan, head of the unit for policy studies at the Centre for International Political Studies (CIPS) at the University of Pretoria.
Biowatch, an organisation which campaigns against genetically modified organisms (GMOs), applied to the High Court for an interdict to compel government to give it access to sensitive information regarding GMOs – and the media widely trumpeted the case as a “major victory”. However, most of Biowatch’s requests were denied, and it lost its appeal against the High Court order that it pay Monsanto’s legal costs after they were forced to defend their interests in the case.
Even a precursory reading of the pre-appeal judgment clearly paints a different picture to a “major victory”. Biowatch’s case was found to be “clearly oppressive and vexatious” and a “fishing expedition”. Luckily for Biowatch, it found a very sympathetic judge who didn’t summarily chuck its vague case out of court. If mass media wish to build an image of accountability, journalists mustn’t allow themselves to be led by the nose – especially not by fringe activist organisations.
In short, the nature of the information Biowatch requested was: so unspecific and vague that it was in many instances “void for vagueness”; and so broad that it would directly infringe on the clear privacy rights of the producers of GMOs – multinational companies such as Monsanto. Both these issues deserve our attention.
The vagueness of Biowatch’s application
This is what the court decided about each of Biowatch’s requests in its application: Biowatch’s first request: Rejected, because it was proven in court that Biowatch already had the information it requested. How bizarre can you get? Biowatch’s second and third requests: Found superfluous, as they were included in the fourth request. Of the eleven items included in Biowatch’s fourth request, the court wholly rejected four items for either being “unreasonably vague” or prejudicing privacy rights. Five were only partially granted subject to the express protection of the private commercial interests of companies that produce GMOs. In fact, the only items granted without the need for an express limit, were the two that had no relevance to the interests of the private industry. S tatistically, this amounts to two (small) wins; five debatable wins/defeats; and seven defeats. Only the most devious spin-doctor could mislead the media and the public into believing Biowatch actually won.
Challenge to private commercial interests
The second important aspect of the case is that Biowatch’s application directly challenged and threatened the private commercial interests of companies that produce GMOs, such as trade secrets and other confidential business information. These companies, inter alia the multinational Monsanto, were therefore compelled to add themselves as respondents to the case, in order to protect their own interests, as well as the interests of third parties. These included farmers who tested GMOs for these companies, because Biowatch requested, for instance, the exact locations of all these private farms. (Why would Biowatch want such information, might one ask?)
In every respect, the court upheld the industry’s rights to privacy of its trade secrets and other private commercial interests. Nobody with a clear conscience could interpret this judgment as a “victory” for Biowatch. If any party walked out the courtroom a victor, it was the private industry – Monsanto in particular.
What is Biowatch’s appeal about?
Biowatch appealed the costs order with the main argument that it acted “in the public interest” and should therefore enjoy immunity against cost orders. It’s clear this argument would open the door to all kinds of vexatious court cases in the name of “public interest”. Public interest litigation should – similar to any other litigation – be done in a responsible, non-vexatious manner. In a democracy no party to a court case can expect immunity.
Conclusion
It’s important to note that the court found that Biowatch did have an alternative, less expensive route. It could have followed internal appeal procedures within the government department holding the information, but chose the expensive, spotlight route at the cost of the embarrassment of finding that it in fact already had some of the information demanded in court, at the cost of defeat in it’s challenge to privacy rights, and at the cost of being exposed as a vexatious litigant. Whether you are sympathetic to Biowatch’s anti-GMO cause or not, if an activist organisation really serves the public interest, it should have the integrity to inform the public honestly of the real facts.
Contact Adv Donrich Jordaan on (012) 420 2696.
