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Jan 11, 2013

Uncharted legal waters as coal hoaxer mulls jail, fines

Anti-coal protester Jonathan Moylan's fake press release fooled the market this week -- but will the stunt land him in jail? Sally Whyte examines the precedents and finds Moylan is in uncertain waters.

Environmentalist Jonathan Moylan wanted to put pressure on ANZ and coal backers through his fake press release on Monday. But the focus may end up being on the corporate watchdog.

Speaking to Crikey, Moylan says it took a “couple of days” after the press release temporarily wiped $314 million off Whitehaven Coal shares for the Australian Securities and Investment Commission to find him at his camp in the Leard State Forest near Maules Creek in New South Wales. His computer and mobile phone were confiscated but charges have yet to be laid.

Whitehaven Coal, ANZ and investors could all take civil action, according to Associate Professor John Duns of Monash University’s Law Faculty, but with the 24-year-old activist unlikely to have the resources to pay up, eyes will turn once again to the regulator.

Moylan says he’s now “well aware” of the possibility of 10 years in jail and fines of up to $495,000, but he didn’t know about the possible consequences when he sent the fake release saying ANZ had pulled $1.2 billion of investment from Whitehaven Coal’s mine at Maules Creek. Asked if he would still have acted, Moylan avoided the question.

“I’m not someone with hundreds of thousands of dollars,” Moylan said about the prospect of fines and damages. He has been in talks with lawyers but doesn’t have representation yet.

“We’ll see what happens if it comes. I’ve said all along that I’ve been prepared to accept the consequences. I just have to deal with it as it comes up.”

Whitehaven Coal’s biggest shareholder Nathan Tinkler has not commented on whether he plans to take action against the activist.

According to Duns, Moylan could declare bankruptcy to avoid paying damages: “You’d think there’s not going to be much satisfaction in suing him personally.” However, while declaring bankruptcy protects a person from having to pay out if sued, it does not protect them from fines that come as part of a sentence.

Duns believes the combination of media attention, the unlikelihood of results in a civil action and the ASX’s resistance to unravelling Monday’s transactions mean ASIC will be under pressure to make an example out of Moylan and his fake press release.

ASIC is investigating Moylan under Section 1041E of the Corporations Act, which deals with making false or misleading statements. The act states a person must not make statements that “have the effect of increasing, reducing, maintaining or stabilising the price for trading in financial products on a financial market operated in this jurisdiction”.

According to Associate Professor Keturah Whitford at the Australian National University’s College of Business and Economics, Moylan could be charged under Section 1041E, but could also face civil action from stakeholders under Section 1041H of the Act.

There isn’t an Australian precedent to foreshadow the likelihood of conviction or possible sentences. Whitford says it’s “hard to predict sentencing, but the extent of damage including losses to investors would be taken into account and the fact that he wasn’t personally profiting”.

Moylan says he wrote the press release by himself, but declined to say if anyone else knew what he was doing.

This is the third time in seven months the Australian stock market has seen share prices and trading affected by hoaxes. In July last year, David Jones stocks fell 5.4% on the back of a fake takeover bid and in October, trading in MacMahon Holdings was halted due to a bogus takeover bid.

“Market integrity is a fundamental case,” said Duns. “There’s been a couple of them and that increases the pressure on ASIC to take action.”

Charges haven’t been laid over the David Jones or MacMahon cases, so there is no Australian precedent. Comparisons can be made to American activist Tim DeChristopher — he was sentenced to two years jail in 2011 after making false bids on an oil and gas lease sale in Utah.

Moylan says it’s unlikely he will take similar action again, but that others will try to “embarrass and shame” corporations with more hoaxes.

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99 thoughts on “Uncharted legal waters as coal hoaxer mulls jail, fines

  1. Gavin Moodie

    Surely it is relevant that much of the damage was due to the media following its lazy habit of reporting press releases without doing even basic and simple checks.

  2. Limited News

    Hear hear Gavin, I was going to make the same point. The AFR was sucked in, judging by a Google cache I saw.

  3. Jimmy

    Yep the media was lazy but the results were exactly what was intended by Moylan so his guilt seems pretty clear.

  4. Gavin Moodie

    Moylan’s guilt seems clear enough, but what penalty should he be given? He would have caused very little damage had the mainstream media not reported his media release as fact.

  5. Myriam Robin

    The people most hurt by the stunt aren’t in a position to sue, it seems to me. Whitehaven wasn’t hurt much. Its stock plunged and then rebounded. If anyone was hurt, it’s small retail investors who sold only to see savvy investors like Morgan Stanley pick up their stock on the cheap for an almost instant profit.

  6. Andybob

    Lack of personal profit will be a mitigating factor regarding penalty, assuming Mr Moylan is convicted of an offence, but there are still strong general deterrence factors regarding stock market manipulation.

    The Court will not want to send a message that market manipulation is ok provided you do it for a just cause that you strongly believe in. The penalty imposed will include some component intended to deter others from similar conduct.

    Ultimately this kind of hoax prank can be self defeating. It removes focus from the coal companies and their conduct and makes the hoaxer’s conduct the centre of attention. Whether that conduct has the effect of alienating the public or not is the question. Here the debate so quickly swung around to the effect on ‘mum and dad investors’ (assuming that loss suffered by any other type of investor was immaterial) that it would seem the public is reasonably tolerant of this sort of thing. Whether they are sufficiently engaged to pay attention to the arguments against the development is the next question, I haven’t seen much discussion of the merits of Mr. Moylan’s objections in the MSM at all.

  7. Jimmy

    Gavin Moodie – ” He would have caused very little damage had the mainstream media not reported his media release as fact.”
    And Mark Chapman would of caused very little damage if the gun didn’t go off.
    The fact is Moylan loaded the weapon, aimed it and pulled the trigger, the fact that the weapon worked as intended doesn’t not mitigate his culpability.

  8. Jimmy

    Andybob – “The Court will not want to send a message that market manipulation is ok provided you do it for a just cause that you strongly believe in.” Especially as think that if they did there would be a flurry of people attempting to manipulate the market for a cause AND working in concert with like minded individuals who would profit – if only to fund the cause.

  9. Scott

    Who do you blame…the wind that fanned the flames? Or the goose who threw the lit cigarette in the grass?

    You can rage against the wind if you like….but it seems the authorities believe the goose is easier to pluck.

  10. Gavin Moodie

    I suggest a better analogy is defamation. If I say ‘Brutus is a traitor’ to my best mate Les, Brutus may have an action against me but the damages would be modest. However, if my statement is published on the front page of the Australian Financial Review, Brutus’ damages would be much higher.

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