Who owns Scotland's sea lochs?

A SLAPP against a fishfarm campaigner was granted by a sheriff last week

A salmon farm in Loch Torridon. Photo by Rob Bruce

The biggest fishfarming company in Scotland, MOWI, won a permanent interdict last week that says kayak-campaigner Don Staniford - or any of his associates - cannot go within 15 metres of its fishfarms.

In Scotland breaking an interdict carries the threat of jail. This ruling effectively means any of the environmental campaigners who work with Staniford are barred from this exclusion zone. 

The case (which will go to appeal)  is internationally recognised as a SLAPP, a strategic lawsuit against public participation. That definition essentially says that the law is being unfairly used by the rich and powerful.  

The locations involved are far from the media’s normal haunts and the case got little attention -  “The Fishfarmer” probably covered it in the most detail. So what is going on? 

The background

Don Staniford, a long-time anti-fishfarm campaigner who lives in the north of England, takes a position many people would regard as extreme, because he doesn’t believe a migratory species like salmon should be farmed at all. He describes farmed salmon as “the foie gras” of the sea. He thinks the conditions are cruel and that lead to unacceptably high mortality - much higher than is tolerated in any form of land farming. (Staniford traveled to a fishfarm area recently with Herald journalist Vicky Allan and Allan calculated the average death rate as 25% - compared to 5% for chickens.)

Staniford regularly posts photos and videos of diseased and dying fish in fishfarm pens online, and is accused by MOWI of painting a distorted picture, by editing together images in a way that makes the pens look worse than they are. 

MOWI used to be known as ‘Marine Harvest”. It is the largest fishfarm group in the world, producing 70,000 tonnes of salmon from Scottish waters alone. Owner, multi-billionaire John Fredrikson, initially made his money from tankers and was taken to court by Norwegian authorities for endangering the lives of his employees by ignoring safety rules. Once the richest man in Norway, he is now a naturalised Cypriot, although he lives in a mansion in Chelsea.

What did Staniford do?

A salmon farm is a row of nets with circular hoops at the top, containing the fish. There is usually a fixed platform nearby where the workers are based - but fishfarm operation is increasingly mechanised, so much of the time there is nobody there. 

In 2019, Scottish Sea Farms, who supply Marks and Spencer, called police to move on Don Staniford, who was in a yacht near their farm. There was no suggestion at the time that he was doing anything other than photographing the fish. Staniford responded by accusing Police Scotland of acting as security guards for a private company. In 2020, a similar thing happened and Staniford filed a formal complaint, saying that he had a right to film the conditions at the farms from the open sea.

Police Scotland later apologised to Staniford, saying that there would be ‘learnings’ from the incidents. 

In 2021, Staniford filmed lice-infected salmon at four MOWI farms and made an official complaint to Police Scotland’s wildlife crimes unit. MOWI claimed the filming had distressed the fish and was selective, and they also made an official police complaint.

In October that year, MOWI’s lawyers served an interdict on Staniford, which asked the courts for a permanent interdict to prevent Staniford or associates from going within 15 metres of the cages. That was put in place as a temporary measure and finally granted as permanent by a court in Oban last week - though Staniford says he will appeal.

A legal expert who is familiar with the case but did not want to be named said:

“I have been aware for some time that this case was pending. I am extremely concerned for its implications for campaigning generally, as well as against the salmon farming industry. The water is an area where the public should pass freely. MOWI has argued successfully in the first instance that it’s harassment/dangerous to fish or people for the activist to be allowed within 15 metres of the cages. This effectively means no one can scrutinise the activities of these farms which are basically self-monitored as it is. It’s a very, very dangerous ruling.”

What is MOWI’s case?

The Fishfarmer” quoted Mowi Scotland COO Ben Hadfield: “While our company will listen to and engage with people who may be critical of our business, we will not stand by and accept individuals harassing and intimidating our employees at their workplace. We had sought this interdict to protect the safety and wellbeing of our employees, our fish, Mr Staniford and his associates, and we are pleased that the court has agreed with Mowi’s position.” 

The publication reported that Scottish Sea Farms is now planning to seek a similar interdict.

What is a SLAPP

The definition of a SLAPP includes:

“Threatening or taking abusive legal action on fully or partially unfounded claims and exploiting imbalances in financial, political or societal power while doing so.” 

In a draft submission to the Council of Europe, the UK Anti-SLAPP coalition wrote:

“In Scotland there is currently a case, which the Coalition Against SLAPPs in Europe (CASE) has identified as a SLAPP, where MOWI, a salmon farming multinational company has attempted to prevent Don Staniford, an environmental campaigner who documents and reports on the welfare and conditions of farmed salmon, from accessing the farms. After requesting that Staniford take down videos, graphics and blogs he’d created about the company’s salmon fish farms, while threatening legal action, in October 2021, MOWI sought permission for an interdict (injunction) against Staniford, preventing him from going within 15 metres of MOWI’s fish farms, as well as other prohibitions such as not being able to fly drones within 50 metres of any farm, recording or speaking to employees or encouraging others to act on his behalf.”

The draft goes on to explain that SLAPPS in Scotland can have very serious consequences. 

“While this will generally mean a civil lawsuit, in some jurisdictions it is possible to trigger misdemeanours, administrative measures or criminal charges against their critics, including through the use of injunctions.” 

Conclusion

MOWI accuses Don Staniford of editing photos and video in such a way as to misrepresent the condition of the fish. If that is the case, surely the best remedy might be to put webcams up so that anyone who wishes to can view the pens in real time and see how healthy the salmon are? Creating a legal exclusion zone may give the impression there is something to hide. 

There are many other reasons to be concerned about the expansion of the salmon farming industry. I wrote last week how the clouds of nutrients, feaces, fishfood and other detritus they spread across Scotland’s sealochs are deforming the marine ecosystem, and may threaten the spawning grounds of many other species of fish. Does this ruling mean that citizen scientists who want to monitor the state of Scotland’s maerl beds near fishfarms could be forbidden from doing that too? 

People have a right to monitor and cherish the health of Scotland’s beautiful sea lochs, and the creatures within them.