Slapped Down: Six journalists on the legal efforts to silence them

Strategic lawsuits against public participation (Slapps) are a form of legal harassment used to intimidate and ultimately silence those that speak out in the public interest. Index on Censorship’s research and analysis focuses specifically on Slapps against...

Slapped down: Six journalists on the legal efforts to silence them

Introduction

Strategic lawsuits against public participation (Slapps) are a form of legal harassment used to intimidate and ultimately silence those that speak out in the public interest. Index on Censorship’s research and analysis focuses specifically on Slapps against journalists, but activists, academics, and civil society organisations are also among those affected.

Slapps take many forms, but the most common is civil defamation. According to George Pring and Penelope Canan, American academics who coined the term Slapp in the 1990s, “accusations are just the window dressing”. This is because Slapps tend to lack legal merit and usually end up being dismissed once the facts of the case have been presented in court. This would be good news – but a judge’s decision is not the issue. The amount of time, energy, and money involved in even getting before a judge is vast and can be prohibitive, especially in cases where an individual (as opposed to an organisation) has to foot the bill for their own legal defence.

This means that just the threat of a Slapp can be intimidating enough for a journalist to feel that they should discontinue their research or reporting, or to remove their report from circulation if it has already been published. This is true even though the information is in the public interest and the journalist can prove that it is accurate.

In order to make the Slapp as intimidating as possible, journalists may be told they could be liable to pay vast amounts of money if they publish their story or if they refuse to remove the story if it has already been published. Financial gain, however, is never the aim of a Slapp. Most Slapp plaintiffs (the individuals who start the lawsuit) tend to be wealthy or powerful businesspeople or political figures. Disparity of power and resources is a hallmark of a Slapp.

Journalists facing Slapps are also more likely to be sued individually, even if they are employed with news organisations. This is done in an attempt to isolate them and deprive them of being automatically entitled to the support of their organisations.

In order to make the process as punishing as possible, plaintiffs may try to drag out the legal action. This is done in order to drain journalists of as much time, money, and energy as possible in the hope that they will give up on their reporting. Plaintiffs may also try to file multiple lawsuits in an attempt to ‘bury’ the journalist in litigation. In early 2017, one businessman filed nineteen defamation lawsuits against Maltese journalist Daphne Caruana Galizia all at once.

In some cases, plaintiffs may seek to bring cases in jurisdictions that are seen as more plaintiff-friendly. The UK is widely seen as one such jurisdiction. According to research conducted by the Foreign Policy Centre, most of the legal letters received by Europe-based journalists were sent by law firms in the journalists’ own countries (80%), but 31% had been sent by law firms in the UK.

How common are Slapps? The same survey found that 73% of investigative journalists in Europe had received legal communication as a result of information they had published. Most of these (71%) had come from corporations or other business entities. Research carried out by Index on Censorship suggests that they are becoming increasingly common.

Yet, because Slapps are usually communicated to journalists through legal letters marked ‘private and confidential’, they are rarely brought to light. This report is an attempt to bring the practice into the open. Six journalists from Finland, Estonia, Italy and Cyprus recount their experience of facing lawsuits after having published public interest investigations. (Note that these case studies bear the hallmarks of  Slapp cases but we make no comment on the bona fides or legal merits of the cases themselves.)

Notice: This publication has undergone a pre-publication review by senior English defamation lawyers.

A cross-border investigation in Estonia and Finland

Estonian journalists Mihkel Kärmas and Anna Pihl work on Pealtnägija (Eyewitness), an investigative programme on the Estonian national broadcaster, ERR. “We’re like the Estonian 60 minutes, meaning that we do investigative stories but human interest stories also. We’re on every Wednesday for 45 minutes,” explained Kärmas.

In 2018, after having been contacted by two journalists in Finland, Kärmas and Pihl began working on a new investigation. One part of their investigation focused on the alleged criminal activities of individuals linked to a Finnish non-profit agency in Estonia, particularly the transfer of hundreds of thousands of euro from an Estonian shell company. These individuals are the subject of an ongoing criminal investigation in Finland. The case was also briefly investigated in Estonia before the materials were turned over the Finnish authorities. Another part of their investigation centred on the sale of a Tallinn property that had been owned by the Estonian Centre Party. One of the businessmen linked to the Youth Foundation was involved in the sale.

On 7 November 2018, ERR’s investigation was published in online articles and aired on Pealtnägija.

What happened after the investigation was published?

On 21 December 2018, the Friday before Christmas, the businessman who was allegedly linked to both the Estonian shell company and the sale of the Tallinn property filed a lawsuit against Kärmas, Pihl, and ERR claiming that the investigation had caused ‘injurious action’ and ‘spread false information’.

“We got very extensive court material where they had written up some 18 counts […] whereby we caused significant economic loss,” Kärmas told Index. “They write in their paper that the loss is up to 1 billion euros”.

“A lot of the material that we ended up publishing had already been published in Finland. It’s public knowledge in Finland, and actually a lot of it had been published in print here in Estonia,” Kärmas said. “But regardless of that, we ended up being sued.”

The lawsuit didn’t only name ERR as the defendant, it also named Kärmas and Pihl specifically. It was the first time that any of ERR’s employees were individually sued as a result of their reporting. “At the beginning I was kind of stressed – I was upset I would say,” Pihl said. “First of all I don’t have that kind of money, second of all it would mean that we can’t work as investigative journalists anymore.”

On 7 January 2019, Harju County Court ordered ERR to remove the investigation from its platforms. “It has been taken down and nobody can read it or watch it – both the written and video version. I think it’s concerning because it would be in the public interest that the story is up,” Pihl explained. “This businessman is under criminal investigation – it’s connected with a political party that’s in power, meaning that obviously the public should be able to Google it and go back to it. And also other journalists – if they write new stories – there is useful information for them.”

Support

“Fortunately our TV station was very helpful – they said that they will protect us and that we don’t need to be personally responsible, whatever happens,” said Pihl. “I think that’s the main thing that helped me to be kind of alright with this case is that the public broadcaster said that they are going to pay our court fees and whatever other costs are connected with this case.”

What if she didn’t have that support? “I think I would be very, very stressed because then I would actually think that we might just lose because I wouldn’t have the money to hire a proper lawyer or I would have to use all my savings. That shouldn’t be the case for a journalist because then I would be afraid to publish new stories against businessmen – or anybody basically.”

“In a way, we’re in a lucky position that our media organisation, by Estonian standards, is quite a large one, actually the largest one in Estonia, at least by some standards. We feel quite secure in that respect,” Kärmas said.

“But if you’re a freelancer or working for a smaller media organisation then it’s definitely a headache for instance just to cover the running legal costs. But if this becomes a norm that different parties start bringing legal cases against journalists in Estonia, then we definitely need to think about some sort of security for the journalists involved,” Kärmas said. “I can easily see that this [legal strategy] will make journalists wonder what type of stories they want to take up.”

Dragging it out

Despite nearly two years having passed since the lawsuit was filed, little progress has been made. According to Kärmas and Pihl, one of the delays was due to a motion that was filed to the court in September 2019 requesting that a video file of the broadcast be submitted. “They obviously had the video to prepare this lawsuit,” Kärmas said. “Although they had it, we were fully prepared to give it to them. There’s no obstruction from our part, but for some reason we haggled over this for months and months”.

According to Kärmas and Pihl, efforts were also made to prevent their employer from covering their legal fees. “This resulted in a short, separate litigation,” they said, during which ERR was forced to provide details of the contract Pihl and Kärmas had with their defence lawyers. “We were wondering what [they] would do with this information and in the end of July 2020 they sent a letter to the Parliament’s Culture Commission, the Finance Ministry, the Estonian Broadcasting’s governing body, and the State Audit Office asking whether they regard it appropriate use of public funds if the public broadcaster pays for our individual attorneys,” they said.

“From a personal, emotional point of view, it’s very annoying and very difficult. Each step in this litigation takes like three months,” Kärmas said. “So you refresh your memory about all the details, then you answer something, two or three months nothing happens, then there’s another turn, another letter and you have to read up on this again.”

“I realise that it’s going to take… I don’t know how many more years and we haven’t even had any hearings in the court,” Pihl said. “If the other party is angry enough, funded well enough, then they can really make your life difficult,” Kärmas said.

While the litigation continues, their investigation remains unavailable to viewers and readers. “The story is down from online meaning that every day they manage to postpone the case they win a day without the story being up. Even if in the end there would be a decision that we can put it up again. It means they would still win, because for such a long time it wasn’t available,” Pihl explained. The lawsuit is ongoing, pending a final decision from the court.

Finland

Freelance journalist Jarno Liski and his colleague Jyri Hänninen, who works for the Finnish national broadcaster YLE, began reporting on the Youth Foundation in mid-2016. “[The story] is highly significant,” Hänninen replied when asked about the case. “It’s one of the biggest financial crimes investigations in Finland.”

It was their reporting that prompted Finnish authorities to start investigating the financial affairs of senior members of the Youth Foundation in 2018. “There’s almost 20 people who are suspected of crimes and the financial harm that these guys have caused is at least 100 million euro,” Hänninen explained.

Liski and Hänninen contacted Pihl and Kärmas, after it came to light that an Estonian shell company had been used in the money transfers. “And we’ve been exchanging information every now and then and trying to help each other out,” Liski said.

Both Liski and Hänninen were shocked when they heard that the reports by their Estonian colleagues had to be removed as a result of a lawsuit. “I was shocked and I was highly surprised that it’s even legally possible in Estonia,” Hänninen said. “I don’t know how the legal system works in Estonia but I was really surprised when I heard about the court decision to censor [the story],” Liski said.

But neither was surprised that a lawsuit had been filed. The same businessman who is suing Pihl and Kärmas filed in Finland a criminal complaint for defamation against Hänninen and Liski in late 2018 for their reporting. In January 2019, the police and the district prosecutor issued its decision not to bring charges against the journalists. “I never had to be officially interviewed or anything,” Liski said.

Another businessman linked to the same investigations repeatedly tried to threaten Liski with legal action. “There was this one businessman who three or four times over two or three years contacted my editors or other superiors and made threats usually about civil lawsuits, where he would demand really big compensation – one million euro. But he never went through with those threats”.

“He was threatening that he would sue me, not the company, but me as a freelance journalist for one million euro for these stories that I’ve written,” Liski explained. “We basically laughed but the threat is real theoretically…”

“His lawyer sent a cease and desist letter to me but that never went anywhere. I think I answered something like ‘the stories are correct and if they are not then I will of course correct them if you tell me what I got wrong’ but that was left there. It’s been like two or three years since I last heard from them,” Liski said. “I’ve hoped and so far I’ve been right, that they don’t want to sue me because they don’t want the publicity. But in Estonia they did what they did and it’s still a mystery to me.”

As a freelance journalist, Liski feels that investigating and reporting on the affairs of wealthy and powerful people puts him in an especially precarious position. Despite reporting on the Youth Foundation story alongside Liski, Hänninen was not subject to the same level of intimidation. Why?

“It’s easier to target a freelance journalist than it is someone who is working – as in my case – for the Finnish national broadcasting company, which is really big with 3,000 employees, and lawyers, and all the other people who can help me out,” said Hänninen.

Liski believes that the news organisations that contract him would support him if he were sued as a freelancer. “But that wouldn’t really solve the problem,” he said. “Because the case would still require me to do so much work: to tell the lawyer what the case is about and write all sorts of answers and go to my archives and find all the documents – the evidence for the stories. And even if all the legal costs were covered, no one would still pay for the hours [it takes] to do that.”

“That would pretty much destroy my career in journalism if for one year I couldn’t write anything that someone could pay me [for],” Liski said.

Investigating a Libyan-owned company in Cyprus

In 2017, Cypriot journalist Stelios Orphanides was contacted by a whistle-blower about a Libyan-owned company in Limassol, Cyprus. “[They were] offering me information but it was a little bit too convoluted to write a daily report at the Cyprus Mail, where I used to work at the time,” Orphanides explained.

Orphanides started to receive documents from the whistle-blower and began working on an investigation with Sara Farolfi, an Italian investigative journalist who was a freelancer at the time. “It was an amazing amount of documentation that we had to go through, analyse, and make sense of,” Farolfi said.

“In March 2018 we got the go-ahead from the OCCRP [Organized Crime and Corruption Reporting Project] to investigate and so we started looking into it with the help of this whistle-blower and an American investigator/journalist who was familiar with Libya and who was offering us guidance to make sense of the thousands of pages of material we were forwarded,” Orphanides said. “This is how we came to investigate the story and report it. It took us about six months to work on this story”.

“[O]f course, what we focused on was a piece of the story. We decided to look into Cyprus because that’s where most of the stuff was coming from,” Farolfi said.

On 25 July 2018, Orphanides and Farolfi’s investigation – “Cyprus Records Sheds Light on Libya’s Hidden Millions” – was published on OCCRP’s website.

What happened after the investigation was published?

In August 2018, a lawsuit was filed against Orphanides and Farolfi by a lawyer peripherally connected to the story. That lawyer is named as a plaintiff, alongside four other individual lawyers from his law firm. The lawsuit alleges that Orphanides and Farolfi’s investigation defamed the lawyers, interfered with their professional gravitas and reputation, and exposed them to humiliation and contempt. It also alleges that Orphanides and Farolfi violated their human rights to a private and family life. The lawsuit demands compensation “either together and/or separately” from the journalists.

“It came as a shock,” Farolfi said. “From one side I was certain that we had made no mistake. But when you receive a piece of paper that says ‘you may be asked to pay 2 million euro’, then even if you feel strongly about what you’ve done, it’s scary. I felt shocked to be honest.”

Orphanides said he was less surprised when the lawsuit arrived, but was surprised at the way that it was served to him. “[U]sually when you get sued the court clerks simply give you a call and they say ‘we have this lawsuit and we would like to serve it to you’,” Orphanides explained. “But they didn’t call, or go to the office, instead [the court clerk] came to my place.”

Farolfi said that she didn’t received any notice that she was being sued. “I never received anything. They say they sent me an email, which I never received, and this is quite weird because as an investigative journalist I’m used to checking my spam inbox as well as the normal inbox. And also they had my email address because the publication was a lengthy process and, like always, we sent a request for comment. We sent this request from my email address and from Stelios’ one,” she explained.

According to Farolfi and Orphanides the would-be plaintiff had responded to their request for comment before the investigation was published. “And we included – if not the entire response – a very large portion, and the most significant parts of his response. We haven’t omitted anything of interest to the reader,” Orphanides said.

“Anyway, we were sent the lawsuit and it was personal despite the fact that we had published the investigation with OCCRP,” Farolfi said.

“It’s possible that another purpose of the lawsuit was to know who the whistle-blower that leaked this vast amount of material to us was. This is another aspect of the problem because we, as journalists, will need to protect the identity of this whistle-blower – not to make it public,” Farolfi said.

Orphanides also raised concerns around the plaintiff’s decision to buy the Cyprus Mail in early 2019. The whistle-blower first contacted Orphanides while he was working for the Cyprus Mail and many of the materials used in the investigation were sent to his Cyprus Mail address.

How did the lawsuits affect you and your work? 

“I was scared mainly because I was freelance,” Farolfi said. “We were very lucky because OCCRP immediately stood by us.” Both she and Orphanides have since been hired by the organisation. “We were immediately reassured even before being hired by OCCRP. [It] is one of the few organisations, as far as I know, that stands by freelance journalists with a lawsuit like this.”

“You feel pretty alone when you get sued, because you are actually alone. I mean I was with Stelios and we had an organisation behind our shoulders, but still you feel a little bit alone. And even more so as freelancers at the time, I think. Especially me – Stelios was not freelance but maybe he felt alone too I don’t know,” Farolfi said.

“There are not many people that understand why you – as a journalist – are undertaking that risk. I remember even chats with friends, slightly looking at me like ‘are you serious you got sued for [up to] two million euro and you are still willing to do this job?’,” Farolfi said. “I remember perfectly that I couldn’t sleep that night and I was thinking ‘Well, that’s a good point. To what extent am I willing to take risks?’.

For Orphanides, the lawsuit was the last straw. “When I got sued for that [OCCRP story] then I realised that I was asphyxiated. It’s not unrelated that a couple of months later, together with my wife, we left Cyprus,” said Orphanides, who now lives in Sarajevo.

Did either of them consider quitting investigative journalism? “I mean the opposite, it convinced me that I had to double down my efforts,” Orphanides said. “I concluded that more investigations were needed and at the same time, doing some investigations in Cyprus was too risky because you would get sued all the time.”

But Orphanides said he feels that his decision to fully focus on investigative journalism means that he will never be able to return to work as a journalist at a Cypriot media outlet. “We have entered a one-way street professionally,” he said. “From the moment that you have done some investigative reporting, you are excluded from the mainstream media market [in Cyprus].”

Like Orphanides, Farolfi also said she never seriously considered changing career. “But I told myself, this is not a job that can be done as a freelancer: ‘this is teaching you that you need to move to a different set-up because this is what I’m going to have to face for any other investigation that I will work on’.”

“There is such a disproportion of forces that unless you have someone behind you – an organisation – and even for an organisation it’s a tough gig,” Farolfi said. “For them to file a lawsuit against two journalists, it just costs nothing. It just costs nothing. They are no downsides. They just need to do what they do every day. They don’t need to allocate any special resources to it. So there is this asymmetry – disproportion of forces.”

Both Farolfi and Orphanides expressed concern over the amount of time they expected the lawsuit to take. “I don’t expect this case will come to the courts before 2025 or so. Maybe longer,” Orphanides said. “Will it be easy for me to remember all the facts in five years?”

“We are lucky to have an organisation behind us. But it’s definitely time-consuming, resource-consuming and stressful,” Farolfi said. “You have this uncertainty like a sword of Damocles over your head,” Orphanides said.

Advice to journalists facing a potential Slapp case

We asked the journalists what advice they would give to fellow journalists who might be facing similar legal threats and actions. They had two main pieces of advice:

Think about the risks in advance and prepare accordingly

“The first piece of advice – a rule if you do investigative journalism – when you publish something it has to be bulletproof,” Sara Farolfi said. “You should make every effort to get all the proof that you need to make your piece more solid. You would be surprised if you knew how long it takes us to get a story published. And it’s all worth it. Totally all worth the time.”

At the same time, she acknowledged that a lot of courage is needed to publish an investigation that involves wealthy or powerful people and to stand by your story once it has been published. “You need to have a thick skin to do this job, certainly,” she said.

“There’s always a risk when you go after these kind of people who have money and influence. It will, of course, take some courage,” Jarno Liski said. “It’s unwise what we do personally when you think about your own situation – there’s not much to win and you could end up in trouble. But it’s important and I encourage people to have more courage.”

“Try to cover your back anyway. As a freelancer, especially, I should have agreed in writing with the media outlets that I write for that they will have my back if we go to court or something like that,” he said. Pihl also advised journalists to speak to their media companies about whether they will support them if they personally face a lawsuit. “I think every journalist has to ask their company if this kind of case happens, if they are going to pay for them,” she said.

“When you’re doing these kinds of investigations on financial crimes and corruption, usually they’re people with a lot of money and a lot of power and they’re using that money and power to intimidate you,” Jyri Hänninen said. “Never stop what you’re doing. It’s always important to bring these out for the general public.”

Speak about the legal threats or lawsuits you may be facing

“At the beginning it’s scary but a court case doesn’t mean that it leads to something,” said Anna Pihl.  “Raising this issue is a very good starting point. If we talk more about this – if we raise our concerns about these kinds of cases to a wider audience then hopefully this trend will stop or at least it won’t increase even more.”

“If a journalist has done a crappy job and they are sued because of that then obviously the story should be corrected. But everyone who is working to a high standard shouldn’t be afraid,” she said. “You don’t have to be worried that you can’t write your stories if you’ve done everything correctly. If your work is of a high standard, in the end the journalist will win.”

Pihl also stressed the need for journalists to work together and to have a support network. “This kind of network is very important because if journalists come together they are stronger,” she said. “I don’t have to think ‘maybe if something happens I’m alone’.”

Stelios Orphanides also urged journalists to speak out. “Reporters should perhaps join these efforts that you are making as an organisation and demand that every country – in Europe at least where the rule of law is supposed to be applied – to press for changes to the legislation that would make it more difficult for such lawsuits to be filed against journalists,” he said.

“We need legislation to help us,” Liski said, “legislation and the way it is used is really important. We also have to be careful that we have protections for journalists so that they can write things about powerful people”.

Conclusion

Any effort to silence a journalist poses a threat to the public’s right to information, to rule of law, and ultimately to our democracies. Whether or not an accurate and newsworthy investigation is published shouldn’t depend on a journalist’s courage or their determination to serve the public interest above their own. Concrete action is urgently needed to support journalists and protect them from falling victim to legal harassment.

Anti-Slapp statutes exist in several states, including in Canada and the United States. Similar anti-Slapp legislation, in the form of an EU directive, would offer the most comprehensive protection not only to journalists but to activists, academics, and civil society organisations. Such a directive should provide for Slapps to be dismissed at an early stage of proceedings, for Slapp litigants to face financial penalties for abusing the law, and for Slapp victims to be given the means and support to defend themselves.

Acknowledgments

Special thanks to Anna Pihl, Mihkel Kärmas, Jarno Liski, Jyri Hänninen, Sara Farolfi, and Stelios Orphanides. Photo credits: Anh Nguyen/Unsplash (main image), PDPics/Pixabay (newspapers)[/vc_column_text][vc_row_inner][vc_column_inner width=”1/4″][vc_single_image image=”113711″ img_size=”full” onclick=”custom_link” link=”https://postkodstiftelsen.se/en/”][/vc_column_inner][vc_column_inner width=”3/4″][vc_column_text]This report has been supported by the Swedish Postcode Foundation. The foundation is a beneficiary to the Swedish Postcode Lottery and provides support to projects that foster positive social impact or search for long-term solutions to global challenges. Since 2007, the foundation has distributed over 1.5 billion SEK in support of more than 600 projects in Sweden and internationally.[/vc_column_text][/vc_column_inner][/vc_row_inner][/vc_column][vc_column width=”1/4″][vc_widget_sidebar sidebar_id=”smartslider_area_1″][vc_hoverbox image=”115716″ primary_title=”Are you facing a Slapp? Find out here” hover_title=”Are you facing a Slapp? Find out here” hover_background_color=”black” hover_btn_title=”Use our tool” hover_btn_color=”danger” hover_add_button=”true” hover_btn_link=”url:https%3A%2F%2Fwww.indexoncensorship.org%2Fam-i-facing-a-slapps-lawsuit%2F” el_class=”text_white”][/vc_hoverbox][vc_empty_space][vc_hoverbox image=”115715″ primary_title=”Read our report, Breaking the Silence” hover_title=”REPORT: Breaking the Silence” hover_background_color=”black” hover_btn_title=”Read the report” hover_btn_color=”danger” hover_add_button=”true” hover_btn_link=”url:https%3A%2F%2Fwww.indexoncensorship.org%2Fcampaigns%2Fbreaking_the_silence_report_slapps%2F” el_class=”text_white”][/vc_hoverbox][vc_empty_space][vc_hoverbox image=”115717″ primary_title=”Read our report, A gathering storm” hover_title=”REPORT: A gathering storm” hover_background_color=”black” hover_btn_title=”Read the report” hover_btn_color=”danger” hover_add_button=”true” hover_btn_link=”url:https%3A%2F%2Fwww.indexoncensorship.org%2Fcampaigns%2Fthe-laws-being-used-to-silence-media%2F” el_class=”text_white”][/vc_hoverbox][vc_empty_space][vc_widget_sidebar sidebar_id=”smartslider_area_1″][vc_widget_sidebar sidebar_id=”smartslider_area_1″][vc_widget_sidebar sidebar_id=”smartslider_area_1″][vc_widget_sidebar sidebar_id=”smartslider_area_1″][vc_widget_sidebar sidebar_id=”smartslider_area_1″][vc_widget_sidebar sidebar_id=”smartslider_area_1″][vc_widget_sidebar sidebar_id=”smartslider_area_1″][vc_widget_sidebar sidebar_id=”smartslider_area_1″][vc_widget_sidebar sidebar_id=”smartslider_area_1″][vc_empty_space][vc_hoverbox image=”115716″ primary_title=”Are you facing a Slapp? Find out here” hover_title=”Are you facing a Slapp? Find out here” hover_background_color=”black” hover_btn_title=”Use our tool” hover_btn_color=”danger” hover_add_button=”true” hover_btn_link=”url:https%3A%2F%2Fwww.indexoncensorship.org%2Fam-i-facing-a-slapps-lawsuit%2F” el_class=”text_white”][/vc_hoverbox][vc_empty_space][vc_hoverbox image=”115715″ primary_title=”Read our report, Breaking the Silence” hover_title=”REPORT: Breaking the Silence” hover_background_color=”black” hover_btn_title=”Read the report” hover_btn_color=”danger” hover_add_button=”true” hover_btn_link=”url:https%3A%2F%2Fwww.indexoncensorship.org%2Fcampaigns%2Fbreaking_the_silence_report_slapps%2F” el_class=”text_white”][/vc_hoverbox][vc_empty_space][vc_hoverbox image=”115717″ primary_title=”Read our report, A gathering storm” hover_title=”REPORT: A gathering storm” hover_background_color=”black” hover_btn_title=”Read the report” hover_btn_color=”danger” hover_add_button=”true” hover_btn_link=”url:https%3A%2F%2Fwww.indexoncensorship.org%2Fcampaigns%2Fthe-laws-being-used-to-silence-media%2F” el_class=”text_white”][/vc_hoverbox][/vc_column][/vc_row]

We mustn’t close our eyes to violence against campaigning women

[vc_row][vc_column][vc_single_image image=”115674″ img_size=”full” add_caption=”yes”][/vc_column][/vc_row][vc_row][vc_column][vc_column_text]This week marked the launch of a sixteen-day UN campaign to eliminate gender-based violence.  As part of the global solidarity movement they want to turn the world orange.  In the 21st century this campaign should not be necessary, but we see daily examples across the world of how women are being singled out for violence, whether state-sanctioned or by non-state actors or even in people’s homes.

When someone talks about violence towards women it is easy to assume they are talking about domestic violence, after all across the world 243 million women and girls were abused by an intimate partner last year.

Closer to home there were over 200,000 incidents of domestic abuse logged by the police in 2019/20 in England and Wales alone.  My friend Jess Phillips, the MP for Birmingham Yardley, every year on International Women’s Day, reads the names of those women who have been murdered in the UK by their partner – this year she read out 108 names.


Jess uses her voice for the women who no longer have one.

But violence against women isn’t only an issue of domestic violence.  We’ve seen too many examples where violence against women, whether threats or actual violence, is used as a tool to try and silence them, to ensure that their voices aren’t heard.

Last month a survey published by Plan International found that 59% of women interviewed had been subjected to some form of abuse online.  These statistics alone are enough to bring about a chilling effect for women who want to participate in public discourse but it’s compounded when you consider some of the highest profile academics, campaigners and journalists who have been murdered, imprisoned or threatened in recent years:

  • Kylie Moore-Gilbert, accused of espionage by the Iranian regime and finally released this week after two years in prison;
  • Loujain al-Hathloul, a women’s rights activist in Saudi Arabia who has been imprisoned for the last two years.
  • Maria Ressa, the investigative journalist from Rappler, hit with fines and criminal charges for her work;
  • Daphne Caruana Galizia, a campaigning Maltese journalist assassinated on 16 October 2017;
  • Berta Cáceres, a leading Honduran environmental activist murdered in her home on 2 March 2016.

These women represent untold others, whose stories we simply don’t know – yet.  That in itself is heart-breaking.

Our job at Index is to keep shining a spotlight on what is happening across the world, to make sure that as many people’s stories as possible are told.  To empower them, to fight with them and to support their families.  To make sure that no one is silenced because of the fear of violence.

We were launched nearly 50 years ago – but there is still so much work to do.

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Breaking the silence: A new report on the legal measures that will give journalists back their voices

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Introduction

On 8 July 2020, Index on Censorship brought together a group of distinguished legal experts and practitioners from across Europe for a virtual roundtable to discuss the vexatious use of the law and the threat it poses to media freedom in Europe. The discussion took place on the back of the publication of the report, “A gathering storm: the laws being used to silence the media”, which was published by Index on Censorship in June.

The purpose of the roundtable was to discuss the trends raised by the report with a view to identifying implementable measures that could prevent Slapps (strategic lawsuits against public participation). The group also heard from a United States-based lawyer, Thomas R. Burke, who outlined the anti-Slapp legislation that was enacted in California in 1992.

The roundtable took place under the Chatham House Rule, but the salient points from the discussion form the basis for this report. The report also includes separate inputs from three lawyers: Swedish lawyer Ulf Isaksson, Italian lawyer Andrea di Pietro, and Norwegian lawyer Jon Wessel-Aas.

Please note you can download this report as a PDF or view it as a flipbook.[/vc_column_text][vc_single_image image=”114841″ img_size=”full” el_id=”Executive_summary”][vc_column_text]

Executive summary

A Slapp is a type of legal action not taken to succeed but to induce fear, silence and inaction.

They tend to have minimal legal merit, being used in an effort to exhaust their victims of time, money, and energy, so as to discourage them from expressing critical opinions on matters of public interest. They endanger not only independent journalism but academia, activism, and other forms of civic engagement.

The roundtable participants discussed the main issues around vexatious legal threats and actions, including Slapps, around Europe. These included:

  • Excessive length of judicial procedures and statutes of limitation for defamation cases
  • Abuse of privacy and data protection laws to target the media
  • Tendency to file lawsuits in plaintiff-friendly jurisdictions
  • Growing distrust and increased hostility toward the media

The roundtable’s participants also discussed a number of measures that could be introduced in order to provide  journalists with greater protections when faced with a Slapp, that could stop Slapps from being so time-consuming and expensive, and that could ultimately prevent Slapps from being filed altogether:

  • Better application of European Court of Human Rights case law
  • Training for judges and journalists
  • Introduction of anti-Slapp legislation
  • Rethinking the role of the jury
  • Increasing the use of press councils and ombudsmen
  • Building networks and encouraging solidarity

The participants discussed the main trends and issues with regard to vexatious lawsuits against journalists in Europe. They identified four key areas of concern:[/vc_column_text][vc_single_image image=”114864″ img_size=”full” el_id=”The_problem_with_Slapps”][vc_column_text el_id=”Executive_summary”]

The problem with Slapps

The participants discussed the main trends and issues with regard to vexatious lawsuits against journalists in Europe. They identified four key areas of concern:[/vc_column_text][vc_column_text el_id=”Defamation_law”]

Defamation law

The excessive length of the judicial process in both civil and criminal defamation cases is having a chilling effect in several countries. “Even though we know that they [journalists] will win, it still takes several years,” said one participant with regard to criminal lawsuits in Hungary.

In Sweden, rather than length judicial process itself, it is the statute of limitations for libel offences – which enables legal action to be brought up to a year after publication – that is a threat to the media. “It is not, in my personal view, in conformity with European standards,” said lawyer Ulf Isaksson. “

Because the threshold of harm is so low for civil cases and much higher for criminal cases (enabling most journalists to be acquitted), one lawyer said that from a practical point of view, he thought his clients were sometimes better off facing a criminal rather than a civil lawsuit. The higher level of protection provided for public figures and public authority representatives in countries like Hungary is also having a chilling effect, some participants said.

Although Malta, Ireland, Romania, and the United Kingdom have abolished criminal defamation from their statutes, they are also among the countries where the media is facing the most serious threat from civil defamation. Should the abolition of criminal defamation continue to be a goal? Everyone agreed it should, but amendments should be made to better protect the media from vexatious actions.[/vc_column_text][vc_column_text el_id=”Privacy_and_GDPR”]

Privacy and GDPR

Several participants noted that privacy and data protection actions were increasingly being used to target the media. “In terms of substantive legal proceedings they are always an add-on,” described one participant with regard to Northern Ireland.

Despite the journalistic exemption, take-down requests under article 17 of GDPR (“the right to be forgotten”) are being used by some individuals in an effort to have their history erased from archive material. One participant said that due to the fact that media organisations do not want to spend time and money on assessing the merits of a request, they sometimes comply automatically. The case of Hells Energy against Forbes Hungary earlier this year was cited as an example of the abuse of GDPR.

Although GDPR states that the concept of journalism should be broadly interpreted (recital 153) and despite the CJEU’s preliminary ruling in February 2019 stating that citizen journalists were not excluded from the journalistic exemption (article 85.2), the issue of whether the GDPR exemption applies to citizen journalists has been an issue in several countries.

For example, a statement published by police in the Polish city of Olsztyn earlier this year referred to GDPR stating that “publishing videos from police interventions may give rise to liability for violation of the provisions on the protection of personal data”. The statement was made after an arrest by Olsztyn police was recorded and shared on social media. The Commissioner for Human Rights subsequently released a statement, confirming that they had contacted Olsztyn police requesting that the their statement be amended given that, according to the commissioner, “it may mislead citizens as to their rights and limit the actual exercise of them as part of exercising social control of the activities of public authority functionaries through public opinion”. The commissioner’s statement also referred to GDPR’s journalistic exemption.[/vc_column_text][vc_column_text el_id=”Libel_tourism”]

Libel tourism

The roundtable raised the issue of libel tourism, both in terms of journalists being victims of libel tourism and of countries being (and becoming) libel tourism hotspots. One participant noted that threats of legal actions from other jurisdictions are especially effective because of journalists’ and lawyers’ lack of familiarity with foreign legal systems.

Malta was cited as an example of a country whose journalists have become targets of libel tourism. According to one expert, on the day that Daphne Caruana Galizia was killed in October 2017, Maltese news organisations were subject to legal threats from law firms in the UK and USA. “The economic analysis of those outlets led them to believe that they were better to remove the materials than defending them. They stood by the veracity of what they had published, but removed them anyway.”

This trend continues. Between 1 May and 26 June 2020, two law firms – the US-based Lambert Worldwide and the UK-based Atkins Thomson – sent legal letters to Times of Malta, Malta Today, Malta Independent, Lovin Malta and The Shift News in relation to their reporting.

Some countries, such as the UK, are well-known libel hotspots. Some expressed concern that other countries, particularly Ireland, may become hubs for libel tourism in the future. This was a possibility, particularly given that the damages awarded by Irish courts tend to be the highest in Europe (see our earlier report). The number of tech companies that are based in Dublin was also seen as a potential incentive for taking legal action in Ireland. “And if an award for damages is granted in one EU country, it is automatically enforceable elsewhere in the EU,” warned the lawyer.[/vc_column_text][vc_column_text el_id=”Hostile_media_environment”]

Hostile media environment

Some participants perceived the current environment facing the media across Europe as an aggravating factor, both in terms of the amount of Slapp cases that are being brought against the media, and in terms of the prospect of action being taken to counter them. According to Italian lawyer Andrea di Pietro, “journalists in Italy are seen as a nuisance – as people who poke their noses into events. They are not seen as a resource for democracy”.

The fact that the daily newspaper Gazeta Wyborcza has faced more than 55 legal threats since 2015 was mentioned as an example of this trend. “The media is seen as an enemy of the people,” one participant said.

With regard to the prospect of introducing legislation aimed at protecting the media, another participant said, “Politicians are very reluctant at the moment to give additional protections to online media and social media. There’s rather a tendency to restrict and repress”.[/vc_column_text][vc_single_image image=”114832″ img_size=”full” el_id=”Measures_that_could_prevent_Slapps”][vc_column_text]

Measures that could prevent Slapps

The participants discussed a number of measures that could be introduced in order to protect journalists and prevent Slapps from being brought. They identified six key areas:[/vc_column_text][vc_column_text el_id=”Full_application_of_ECtHR_law”]

Full application of ECtHR law

There was agreement that the criteria, standards and principles developed by the European Court of Human Rights (ECtHR) on the basis of article 10 of the European Convention should be better integrated at national level. “If the case law of the ECtHR was better applied in the member states, we would have less problems with Slapp and vexatious litigation against journalists,” one participant said.

Norway’s experience was given by way of example. “In the 1980s and 1990s, defamation cases were a problem – a big problem for the Norwegian press because we had not incorporated properly the jurisprudence of the European Court,” one lawyer explained. The Human Rights Act came into force in 1999 and it empowered the courts to enforce the European Convention directly as Norwegian law. This enables all the same defences provided for by ECtHR jurisprudence to be used in Norwegian courts. “It doesn’t mean the media don’t lose cases,” the lawyer said, “but it’s a much more realistic attitude toward press freedom”.[/vc_column_text][vc_column_text el_id=”Training_for_judges_and_journalists”]

Training for judges and journalists

Several participants emphasised the need for training to be made available for judges, given that (in most cases) judges are not specialised. This, according to participants, results in judges being educated about the nuances of media and freedom of expression while in the courtroom. “That’s a difficult thing to do,” explained one participant, “you’re starting on the back foot”. Another participant agreed, saying that although most media cases in Poland refer to the ECtHR’s jurisprudence, “they are often quite superficial”.

One lawyer explained that a training course that had been organised for judges in Hungary enabled editors-in-chief and judges to informally discuss Article 10 cases. “That helped a lot,” the participant said. “This is not the solution, but education is important.”

Journalists should be better educated, believed the participants, particularly with regard to two areas of the law. Firstly, regarding what journalists need to do pre-publication in order to protect themselves from potential legal threats or actions. “A big issue is the education of the journalists because they don’t necessarily understand the importance of conveying to the court that they actually undertook that decision-making prior to processing the data,” explained one participant.

Secondly, journalists need to be educated as to their rights and obligations under GDPR, so as to avoid automatic take-downs purely out of caution. “It’s crucial that they understand their defences and their obligations,” said one participant. “It has become more complex.”[/vc_column_text][vc_column_text el_id=”Introduction_of_anti-Slapp_legislation”]

Introduction of anti-Slapp legislation

The group heard from Thomas R. Burke, a United States media lawyer and author of Anti-SLAPP Litigation. He outlined the main features of the California anti-Slapp statute, which was enacted in 1992. Under the statute, defendants may file a special motion to dismiss complaints through a very early and fast summary judgement-like procedure. Once the motion is filed there is an automatic freeze on discovery (the most expensive stage of litigation in the US), amendments to the complaint are not permitted, and the plaintiff cannot dismiss the complaint without facing mandatory lawyer fees. The court should hear the motion within 30 days. If the motion is granted, the action is dismissed and the defendant recovers their fees and costs. If the motion is denied, the defendant may appeal.

Burke described the anti-Slapp statute as a “a remarkable development”. However the California anti-Slapp statute includes exemptions, which he warned against including in future such measures in Europe. “They are nightmarish in their application,” he said. “If it’s a worthwhile case, they will survive the anti-Slapp.”

Unlike in the US, where anti-Slapp laws have been introduced in thirty states, there is no clear hierarchy between privacy and freedom of expression in Europe. The question was raised as to whether any jurisdictions have deployed their margin of appreciation in constitutional terms in favour of privacy. Would that constitute an impediment to having an EU-wide preference for freedom of expression, which would be within the margin of appreciation, should there not be national constitutional impediments? The margin of appreciation potentially causes a problem for having a European standard.

Given that plaintiffs who are natural persons have a right to privacy under Article 8 of the European Convention, it would be more difficult for the courts to throw out alleging that their rights have been violated. Courts would be concerned that could be found to have violated Article 8. It is still open as to whether corporations or state authorities are protected under Article 8.

Council of Europe was mentioned as a potential avenue for developing an aspirational model anti-Slapp law, which could provide for more robust measures to be put in place.[/vc_column_text][vc_column_text el_id=”Rethinking_the_role_of_the_jury”]

Rethinking the role of the jury

The issue of jury trials was raised as a significant obstacle to quickly “weeding out” Slapp cases. “If you bring an application to strike out a case for being vexatious, the judge hearing the application will invariably say ‘well I think I’ll let the jury make that decision’ so everything goes around in a circle,” explained one participant regarding the situation in Ireland. The necessity to have a jury adjudicate on every media case not only increases the time and cost, but makes outcomes more difficult to predict. Participants agreed that putting a defence – such as responsible journalism or public interest – before a jury was very difficult. In England and Wales, the abolition of jury trials for cases of civil defamation has led to a quicker, less complicated process.

Although press offences that are punishable under criminal law are the exclusive competence of a jury court (the Assises Court) in Belgium (except for incitement to racism and xenophobia), the fact that journalists and editors enjoy de facto criminal impunity for press offences means that media law cases are never subject to a jury.

But according to lawyer Ulf Isaksson, juries are “extremely important for the freedom of press situation in Sweden.” “The Swedish jury is entrusted with only one task,” he explained, “and that is to decide whether this specific dissemination was legal or not legal.” However, judges are not bound by the juries’ decision. “So they can still acquit the defendant.” Juries are part of judicial proceedings in mass media cases only. They jury may deliberate outside the presence of the judges, but may consult the presiding judge with specific questions on the law.

Norway has done away with juries altogether in favour of lay judges, which are used in criminal cases. Lay judges, which are common in civil law jurisdictions, are distinct from juries in that they have equal status to the presiding judge, and as such, have an inquisitorial role. They have been credited with being an efficient and less expensive way of expanding public participation. Norway has decriminalised defamation, but violation of privacy is still formally criminalised, although the authorities rarely investigate or prosecute alleged violations when the media is involved.

The roundtable raised the question of whether there are constitutional protections on a right to jury trial in civil defamation cases.[/vc_column_text][vc_column_text el_id=”Press_councils_and_ombudsmen”]

Press councils and ombudsmen

“We do think that a press council is a good idea,” said one participant, referring to its usefulness in identifying and weeding out meritless complaints. However, its positive impact is reduced when filing a complaint with the press council doesn’t prevent legal action. “We’ve had cases, where the claimant has brought something to the press ombudsman, has received a favourable decision, and has subsequently sued,” said one participant with regard to Ireland.

In a case involving the Norwegian daily Aftenposten, Norway’s Supreme Court ruled in 2015 that a condemnation from the press council does not automatically presume a violation of the law, as the journalistic ethics upheld by the council are intended as an ideal. Asked about the case, lawyer Jon Wessel-Aas (who represented Aftenposten in the case) said that when considering whether to impose legal sanctions, the courts have to take a much broader approach than press councils. “Deviations from the ‘ideal’ cannot automatically lead to legal liability,” he said. “Such deviations have to be weighed against all the other factors which, according to the ECtHR’s jurisprudence, are part of the balancing test between ECHR article 10 and article 8, including the degree of public interest involved.”

While most participants agreed that the press councils were a force for good with regard to preventing Slapp actions, some warned that there was a need to ensure they were completely independent. “There is a danger in some jurisdictions that press councils could be captured by political actors,” one expert said. For example, in its 2019 election manifesto Poland’s Law and Justice Party (PiS) proposed to introduce a “self-government” watchdog body aimed at “regulating the journalistic profession”. They have not (yet) taken action on this.[/vc_column_text][vc_column_text el_id=”Building_networks_and_encouraging_solidarity”]

Building networks and encouraging solidarity

One of the reasons why Norway was said to have been quite successful in protecting its journalists from undue legal threats was due to the well-organised nature of their editors’ and press associations. In contrast, journalists in Italy – who are frequently threatened with legal actions – were said to be isolated and disconnected from their colleagues. According to Andrea di Pietro, “journalists are really economically isolated, also from a trade union perspective, therefore weakening a journalists with a lawsuit is very possible thanks to a legal system that doesn’t punish [the vexatious litigators]”. Freelance journalists are particularly vulnerable to vexatious legal threats and actions: they are more risk-averse given their limited time, resources, and support.

The participants discussed the need to build solidarity within the media community, as well as with legal practitioners, experts, and civil society. The roundtable suggested two ways that this could be done:

  • Building a catalogue of Slapp cases

One participant said how useful it would be to have a list of all the Slapp cases in Europe. “There is a strategy happening all over Europe, if we had the cases that could help us to push for the anti-Slapp law.” Attention was drawn to the Council of Europe Platform, which is one of the ways currently being used to help catalogue Slapp cases. Would a database exclusively for Slapp cases be useful and feasible?

  • Amicus curiae

The need to grant access to civil society organisations to amici curiae (an independent advisor who is not party to a case) was one means by which the media could be supported when faced with these legal actions. “Collective intervention makes people feel less vulnerable,” said one participant. Associations in Norway were said to have been successful in intervening in strategic cases. “That has done a lot of good,” the participant said.[/vc_column_text][vc_column_text]

Acknowledgments

Photo credits: Darrin Zammit Lupi/Reuters (main image), Tumisu (sshh!), Shaun_F (highlighted text), Mahesh Patel (newspapers)[/vc_column_text][vc_row_inner][vc_column_inner width=”1/4″][vc_single_image image=”113711″ img_size=”full” onclick=”custom_link” link=”https://postkodstiftelsen.se/en/”][/vc_column_inner][vc_column_inner width=”3/4″][vc_column_text]This report has been supported by the Swedish Postcode Foundation. The foundation is a beneficiary to the Swedish Postcode Lottery and provides support to projects that foster positive social impact or search for long-term solutions to global challenges. Since 2007, the foundation has distributed over 1.5 billion SEK in support of more than 600 projects in Sweden and internationally.[/vc_column_text][/vc_column_inner][/vc_row_inner][/vc_column][vc_column width=”1/4″][vc_widget_sidebar sidebar_id=”smartslider_area_1″][vc_widget_sidebar sidebar_id=”smartslider_area_1″][vc_widget_sidebar sidebar_id=”smartslider_area_1″][vc_widget_sidebar sidebar_id=”smartslider_area_1″][vc_widget_sidebar sidebar_id=”smartslider_area_1″][vc_widget_sidebar sidebar_id=”smartslider_area_1″][vc_widget_sidebar sidebar_id=”smartslider_area_1″][vc_widget_sidebar sidebar_id=”smartslider_area_1″][vc_widget_sidebar sidebar_id=”smartslider_area_1″][vc_widget_sidebar sidebar_id=”smartslider_area_1″][/vc_column][/vc_row]