The diagnosis: How Covid-19 spread an epidemic of attacks on media freedom

27 Oct 20

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Introduction

When the world first heard of a novel, flu-like virus emerging from the city of Wuhan in China, the team at Index immediately took an interest.

We could not have known how the world would be locked down in an unprecedented effort to control the spread of the virus – few could have predicted that. But what was clear even early on was that the news coming out of Wuhan was not the whole story. Once again, Chinese heavy-handed censorship was visible in underplaying the severity of the outbreak.

By the middle of February, we realised that this was no ordinary health crisis and that dramatic, global efforts would be necessary, including restrictions on individual freedoms – something which we do not accept lightly as an organisation.

“That was a worrying signal,” said mapping project leader and Index associate editor Mark Frary. “Index’s experience in the nearly 50 years since it was founded is that moments of crisis are often used by governments to roll back on freedom of speech and the freedom of the media to report on what is happening. The public’s right to know can be severely reduced with little democratic process.”

Index has tracked this history, and has many examples published in our archive which covers the years 1972 to today. Even in February Index was already being alerted to attacks and violations against the media in the current coronavirus related crisis, as well as other alarming news pertaining to privacy and freedoms.

We knew from bitter experience that once these freedoms are eroded, they are hard to get back. We therefore saw raising awareness of any attacks during the Covid-19 pandemic as of paramount importance. We knew it would require a global response.

As a result, we began work on an interactive map to track attacks on media freedoms, the introduction of new legislation or changes to existing laws that threatened to stop journalists from doing their jobs and social media restrictions that threatened the free reporting of information.

Working with our partners at the Justice for Journalists Foundation, we asked our teams, our network of activists and our readers to report from around the world on cases where journalists were being silenced under the cover of Covid-19.

Since then we have investigated hundreds of individual incidents, ranging from efforts by governments to restrict access to only approved journalists to physical attacks on reporters. We have investigated the disappearance of those reporting on social media and cases where journalists have been fined large sums for reporting what their governments have called ‘fake news’ but is, in reality, no such thing.

This report, eight months on from the launch of the Disease Control project, summarises what we and our partners have found in various regions of the world in the period from February to mid-September. More incidents have come to light since and we will continue to report on these attacks.

The purpose of this is not just to report on those incidents but to make sure that restrictive legislation is rolled back when the pandemic is over and that those who have reported on this crisis are not unfairly targeted or worse.

Map trends

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China

At the epicentre of the global pandemic that paralysed world economies was a country ranked the fourth worst in the world for media freedom.

At 177th place, China is by far the world’s worst in terms of major economies. The outbreak of coronavirus has done little to change the situation for its journalists and has only exacerbated the dire situation.

Reporters Sans Frontières described the situation: “President Xi Jinping has succeeded in imposing a social model in China based on control of news and information and online surveillance of its citizens.”

The group reports that more than 100 bloggers and journalists are currently detained.

Media restrictions can often be difficult to report on due to the severity of those media restrictions, but Index were still able to record a total of nine separate incidents in the country.

The Chinese government did its best to keep reports from the affected areas to a minimum. Businessman Fang Bin and journalist Chen Quishi gained thousands of views from videos they streamed in Wuhan. One video, posted by Fang, appeared to show a number of corpses piled into a van. Fang has been missing since February but the South China Morning Post revealed that Chen is alive and now living with his parents under surveillance.

Western journalists have been expelled due to how their papers have reported on the crisis. February saw three reporters from the Wall Street Journal forced to leave the country.

In March, China responded to the “unreasonable oppression” of its own journalists in the USA by expelling “at least” 13 journalists.

Social media in the country is heavily restricted. Pandemic related words were censored as soon as news of the virus came to light when a number of medical professionals including the late Dr Li Wenliang warned people of it.

The so-called “internet police” keep a watchful eye on China’s already heavily censored online world. Those pulled in for questioning for relatively innocuous, but critical, online posts are forced to sign a statement pledging loyalty to the ruling communist party.

A New York Times article described the policing: “Officers arrive with an unexpected rap at the door of online critics. They drag off offenders for hours of interrogation. They force their targets to sign loyalty pledges and recant remarks deemed politically unacceptable, even if those words were made in the relative privacy of a group chat.”

Resistance to such restrictions have been plentiful. Chinese magazine Ren Wu published an interview with a Wuhan doctor and whistle-blower who was critical of the situation. The online post was reportedly removed within hours, but the story remained circulating through other means. Some sites posted the interview backwards, while others used a form of code to bypass censors.

China’s clampdown on reporting has drawn criticism from those within and outside China for hindering attempts to control the virus. In February, RSF condemned censorship in China as harmful to fighting the virus.

The head of RSF’s East Asia desk Cédric Alviani said: “Censorship is clearly counter-productive in the fight against an epidemic and can only aggravate it or even help turn it into a pandemic.

“Only complete transparency will enable China to minimize the spread of false rumours and convince the population to follow the health and safety instructions recommended for curbing the epidemic.”

In response, a campaign of trying to defer blame and place it on the heads of Western powers quickly began. Chinese diplomat Lijian Zhao has been using Twitter to post ‘evidence’ that the virus originated in the USA.[/vc_column_text][vc_single_image image=”115359″ img_size=”full” el_id=”Asia_and_Australasia”][vc_column_text]

Asia and Australasia

Asia and Australasia (excluding China) recorded a total of 30 separate incidents of restrictions of journalists and media freedom. Due to their relative proximity to China, where the coronavirus originated, countries such as India, Cambodia and Myanmar  were expected to introduce opportunistic and more restrictive laws to silence journalists and other forms of expression.

We reported on seven attacks on journalists in the region, five of which were in India.

In May, Index reported Indian journalists’ experiences of “unprecedented levels of censorship in the country”.

Anuradha Sharma’s article for Index spoke of the “stressed” relationship between journalists and state officials.

Sharma said: “Government interaction with the press is stressed. Prime Minister [Narendra] Modi, in keeping with his record, has not organised a single press conference on the issue. Harsha Vardhan, a health minister, has interacted infrequently with the press, while the daily press briefings are conducted by a senior bureaucrat in the health department, Lav Agarwal.”

You can read Sharma’s full report here.

Reports of journalists being assaulted have been frequent. March saw journalist Naveen Kumar beaten by police during routine checks on cars during a traffic jam.

After the incident, Kumar wrote: “I cannot describe it in words how outrageous, how scary and how painful it is. It seems like this shock has sat on my chest like a rock and will kill me.”

The political situation under the Modi regime is ever more constricting. Party allegiances can often lead to further violence such as in the case of Tripura-based journalist Parashar Biswas.

Biswas was attacked by a number of unidentified men in September. The men were said to be members the country’s ruling party Bharatiya Janata.

Recently, as Modi’s grip on media freedom tightens, the Indian Prime Minister froze the accounts of human rights group Amnesty International.

There were 11 arrests due to reporting on Covid-19.

Freedom of expression online was increasingly restricted and Cambodia’s alarming crackdown on ‘fake news’ was of considerable concern. According to Human Rights Watch, 30 people were arrested or detained for spreading false information from January to April, including journalists.

Journalist and director of TVFB news Sovann Rithy was charged with incitement to commit felony after publishing quotes from Cambodian Prime Minister Hun Sen on his Facebook page.

Hun Sen is known for his tight control of the media, so restrictions come as no surprise. Examples of other people warned included a 14-year-old girl, forced to make a public apology after posting on Facebook that three students at her school had contracted the virus.

Ros Sokhet, publisher of the Khmer Nation newspaper, was arrested in June for similarly critical online posts.

Legislative changes were fewer for the region, but this is perhaps more reflective of government’s handling a crisis that were already restrictive towards their citizens.

Malaysia, for example, has heard repeated calls for developments in its human rights and particularly for improvements to freedom of expression, according to Amnesty International. The Sedition Act and the Communications and Multimedia Act mean that only some criticism of the government is tolerated.

In July, Al Jazeera broadcasted a documentary made by Australian journalists about “undocumented” people living through the pandemic.

The documentary brought to light the treatment of migrant workers and the Malaysian authorities using the tight lockdown restrictions of the pandemic to arrest migrants.

Ranking 140^th on the World Press Freedom Index, Thailand is already known for its lack of media freedom. An emergency decree brought in in March empowered authorities to instruct journalists to “correct” reports about the pandemic.

CPJ’s Southeast Asia representative said: “Thai authorities should not use the Covid-19 emergency situation as a pretext to censor or restrict journalists or media organisations.”

Oceania recorded three of the 30 total incidents. Most notably, New Zealand banned magazines and community newspapers as a “non-essential service”. The motion was questionable due to local communities’ reliance on locally sourced news.[/vc_column_text][vc_single_image image=”115369″ img_size=”full” el_id=”Former_Soviet_Union”][vc_column_text]

Former Soviet Union

Overall in the FSU countries, the Covid-19 pandemic became a convenient and widely used pretext for the authorities to further clamp down on critical reporting. The tactics of silencing independent media workers varied from country to country, but some common trends are visible.

In the group of dictatorships that deny the existence of Covid-19 in their states, such as Tajikistan and Belarus, media workers who wrote about the real state of affairs in hospitals, morgues, universities and shops were attacked and their publications suppressed. Turkmenistan falls into the same category of countries, however, JFJ received no reporting from the ground about attacks against independent media.

Autocracies that admit the existence of Covid-19, such as Russia, Azerbaijan and Kazakhstan, but also Tajikistan and Uzbekistan, have been widely prosecuting journalists for not following the variety of freshly introduced rules and regulations and spreading “fake news”. Fines, interrogations, administrative protocols, detentions, arrest and even lengthy prison sentences have been characteristic methods of suppressing independent reporting there.

In Ukraine, a country known for repeated physical hostility against journalists and a weak judiciary, in more than a half of registered incidents journalists were beaten up, detained and their equipment was seized or damaged by members of the public.

Media workers from Armenia, Georgia, Moldova and Kyrgyzstan, although silenced, threatened, summoned for questioning and deprived of access to information, were the least affected by the Covid-19 clampdown on media freedom out of the rest of the FSU countries.[/vc_column_text][vc_column_text]

Russia

In absolute figures, Russia is the record-setter in the number of Covid-19-related attacks against journalists, with 102 cases registered over the last six months.

Astonishingly, all three of the registered physical attacks were conducted in Russian orthodox churches in different locations during crowded Easter services. In two cases journalists were beaten and forcefully removed from the churches by priests and in the third instance by a celebrity actor turned religious fanatic, says our partner JFJ.

There were 15 cases of non-physical attacks with media workers verbally harassed, insulted, threatened and forced to delete or correct their publications under the pretext of them distributing “fake news”, “deliberately false information” or being involved in “extremist activity”. The perpetrators of such attacks were varied and included state TV propagandists, the police, local administrations, the State Duma committee for investigating the interference of foreign states, regional prosecutors, the FSB and the general prosecutor’s office.

The most widely used method of harassing the media workers in Russia is initiating administrative or even criminal proceedings against them. JFJ’s experts registered 50 incidents when administrative protocols and fines were issued to the media workers and outlets for distribution of fake news.

At the start of the pandemic, a new Article 207 of the Criminal Code on fake news about coronavirus was swiftly introduced and used to initiate at least 15 criminal cases against media workers. Under the pretext of investigating fake news about deaths, conditions in hospitals and the actual spread of the disease the police often illegally pressured journalists and bloggers to reveal their sources.

Some regions went further. For example, in Bryansk a criminal case was opened against Alexander Chernov on abuse of media freedom under Article 13.15, following his article questioning the effective measures taken by operational headquarters on coronavirus. And in Dagestan, Steven Derix of Handelsblat and his Russian film crew were detained while filming and charged with the violation of both the self-isolation regime and regime of counter-terrorism operation.

Using the pretext of pandemics, the police clamped down on the last legal method of protest available to the Russians – individual protests. Journalists who were either reporting on those or taking part in individual pickets themselves were routinely issued fines. JFJ registered a total of 18 cases where journalists received official warnings or fines for violating the rules of holding a protest, breaching the social distancing or self-isolation.[/vc_column_text][vc_column_text el_id=”Executive_summary”]

Most affected countries in the FSU

Kazakhstan saw 26 Covid-19-related attacks against media workers registered. This country swiftly introduced a state of emergency and issued numerous penalties, warnings and fines to media workers for violating it. The same pretext was used to deny journalists’ access to locations and information to cover the pandemic. For example, the annual parliamentary meeting to hear the government’s budget report was conducted behind closed doors – an unprecedented move. The meeting was not broadcast online either, with no official explanation provided.

At least five journalists and bloggers were summoned for lengthy and exhausting “talks” and interrogations following their critical publications on the subject for “dissemination of deliberately false information during the state of emergency”. Six media workers were detained and arrested for 10 to 60 days for violating the state of emergency. For example, civil activist Alnur Ilyashev was sentenced to three years of imprisonment and banned for five years on public activities for his Facebook post criticising the policies of the ruling party Nur Otan in regard to the pandemic.

Fourteen attacks were registered in Azerbaijan which gives this country the same risk coefficient as in Kazakhstan – 0.14 (attacks per 100’000). The authorities of these two countries treat their independent media in a very similar way: in Azerbaijan seven journalists were detained and arrested for up to a month for violating quarantine rules. For example, Ibrahim Vazirov was arrested after refusing to delete online reports about Covid-19, and given 25 days in prison for disobeying “a lawful request by the police”. Five more media workers were detained for violating the quarantine rules, fined and released.

Elchin Ismaillu, a newspaper reporter with Azadlyg, who had already been serving a prison sentence, was put into solitary confinement for five days after criticising the penal colony’s measures against the spread of Covid-19.

In Belarus, where authorities deny the existence of Covid-19 cases in the country, attacks against journalists who covered the pandemics looked somewhat schizophrenic.

On one hand, several media outlets received official letters from the Ministry of Information requesting that published stories detailing the spread of the pandemic in Belarus be deleted. The mirror site of the forbidden news media website Charter 97 that reported on deaths from Covid-19 in the country was blocked entirely. Some bloggers, like Olga Zhuravskaya, who brought her son to test for the disease and recorded the process in her blog, were fined for hooliganism. Journalists Larissa Shirokova and Andrei Tolchin, who reported about the first death and dozens of hospitalisations, were fined for producing media content without a licence and its illegal dissemination. Media-Polesie agency was fined for “sharing prohibited content” that was “damaging to the national interests of the Republic of Belarus”.

Even journalists from the Russian official broadcaster Channel 1 covering the pandemic in Belarus had their accreditations cancelled for “spreading information that did not correspond to reality”.

At the same time, under the pretext of “the epidemiological situation in the country”, several journalists from independent outlets, including Radio Liberty, were refused access to official Parliamentary meetings, and the accreditation of BelaPan was withdrawn.

Vasili Matskevich, journalist and a member of the Belarusian Association of Journalists, tragically died in April aged just 46 from what was officially acknowledged as pneumonia.

Ukraine saw 35 incidents of Covid-19-related attacks against media workers. This country upheld its position as having the most dangerous environment for journalists with 23 recorded incidents of physical violence. Journalists were beaten up and their equipment and recordings destroyed while they were gathering evidence on how various businesses, churches and other premises were complying with the quarantine rules. One example is the violent attack on the camera crew of Espresso.TV near a cafe. After the correspondent Ilia Eulash went on the air, an unidentified man ran up to the camera crew, grabbed the camera and threw it into the river. Another reporter, Dina Zelenskaya, started to film the unfolding attack on her mobile phone. The man ran up to her, knocked Zelenskaya to the ground and grabbed her hair. Then he ripped her phone out and threw it into the river.

Bogdan Kutepov of Hromadske.ua was beaten up by the police in Kyiv’s Mariinsky Park while he was broadcasting a rally by entrepreneurs demanding the government terminate the lockdown. That was the only registered physical attack by the authorities.

There were nine incidents of police preventing journalists access to court hearings, city councils and other official buildings and events under the pretext of quarantine and social distancing measures. In two cases, security guards and orthodox priests blocked camera crews trying to film quarantine measures relating to church buildings.[/vc_column_text][vc_column_text el_id=”Defamation_law”]

Least affected countries in the FSU

Moldova remained largely unaffected by repressive Covid-19 restrictions, with just one case of harassment and insult registered against Diana Gatcan from Ziarul de Garda newspaper.

In Georgia, out of seven recorded incidents, two were physical attacks against journalists aimed at preventing them from reporting on the pandemic. Blogger Giorgi Chartoliani was attacked at a protest against lockdown measures in Mestia, Svanetia, and journalist Gocha Barnovy attacked during his interview with Rustavi-2 TV about the lack of protective measures in Georgian orthodox churches during Easter services.

Two freelance journalists – Khatuna Samnidze and Nino Chelidze – were summoned for interrogation by the Georgian State Security Services for their Facebook posts on mortality rates and statistics of Covid-19 cases in Georgia.

Armenia, with its population of 3 million, seems to have the highest risk coefficient per 100’000 – 0.67. However, all 20 recorded incidents related to police letters to media outlets requesting removal of a Covid-19 related story that contained criticism of government policies. In many of these cases the media refused to abide without any consequences.

In Tajikistan, the authoritarian state where monitoring of attacks against media is severely constrained, the authorities deny the existence of Covid-19 cases. Independent journalists and media who reported objective facts about the medical and economic impact of the pandemics were silenced by police “for sowing panic”. The Radio Liberty-Radio Ozodi website was blocked, and media workers who had expressed critical opinions received death threats and insults via phone and social media. Our experts registered five incidents.

In Uzbekistan, with just 11 recorded incidents, the authorities widely used new Covid-related restrictions to suppress independent reporting. Several media workers were fined for not wearing a mask, five bloggers were sentenced to between seven and 15 days in prison for “violating quarantine rules”, and there were two failed and one successful attempt to forcefully quarantine independent journalists without any legal basis. All of the attacked media workers are known for their objective reporting on the economic toll of the pandemic and criticising government policies in relation to Covid-19.

In Kyrgyzstan the government swiftly introduced a state of emergency and only provided the state-owned broadcaster KTK with access to information. It refused to accredit other journalists, nor did it share official information with any independent reporters. This was done under the pretext of health considerations, in direct contradiction of the country’s legislation.

At the same time, the tragic death of Kyrgyz journalist and human rights activist Azimzhon Askarov, who was serving his 11th year in prison, is widely considered to result from infection with Covid-19 and a lack of medical help in prison.[/vc_column_text][vc_single_image image=”115353″ img_size=”full” el_id=”North_America”][vc_column_text]

North America

In North America, Index verified a total of 15 incidents, most common of which were attacks on journalists. All verified instances were in the United States.

Media freedom has been under attack in the US under President Donald Trump and trust in journalists has fallen.

The US press freedom tracker has logged 201 journalists attacked, 58 equipment damages, 63 journalists arrested and 10 occasions where equipment was searched or seized in this year alone.

The tracker is run by Freedom of the Press Foundation and the Committee to Protect Journalists in collaboration with other media freedom groups including Index.

A catalyst for attacks on journalists in the country has been the Black Lives Matter protests after the killing of George Floyd. Since the protests began, over 825 reported aggressions towards journalists during protests have been registered.

With specific focus on the Covid-19 pandemic, Trump has regularly attacked journalists as a cover for his own poor handling of the crisis and eight of the 15 incidents were such attacks.

A typical incident was on 19 May when CBS’ Paula Reid asked Donald Trump why there seemed to be no plan to get 36 million unemployed Americans back in to work. The president replied: “Oh, I think we have announced a plan. We are opening up our country — just a rude person, you are. We are opening up our country, and we’re opening it up very fast.

“The plan is each state is opening and it is opening up very effectively, and when you see the numbers I think even you will be impressed, which is pretty hard to impress you.”

In June Index joined with 71 other press freedom organisations to write to the president to condemn recent attacks on the media and express concerns over an apparent lack of commitment to hold up the values of the First Amendment.

The letter stated: “Press freedom in the United States is critical to people around the world. Thousands of foreign correspondents are based in Washington D.C. and throughout the U.S., where they are tasked with telling the story of America to their publics back home. The ability of journalists to work freely in the U.S. creates a more enlightened global citizenry.”

“Instead of condemning journalists and the media, we urge you to commend and celebrate them as the embodiment of the First Amendment, which is the envy of so many countries around the world.”

Canada has avoided clamping down on the media during the crisis.[/vc_column_text][vc_single_image image=”115355″ img_size=”full” el_id=”Central_and_South_America”][vc_column_text]

Central and South America

Our map for Central and South America recorded a total of 17 incidents during the Covid-19 pandemic. The most common incident was detention or arrest.

Similar to incidents across the border in the USA, journalists were targeted during protests. In Chile during 1 May demonstrations, 15 journalists were rounded up and arrested as part of a police plan to break up demonstrations.

Police claimed the crowd was broken up only due to restrictions of large gatherings of over 50 people due to the pandemic. Spanish newspaper La Vanguardia claimed such scenes had “not been common since the Pinochet dictatorship”.

There were also reports of excessive force by police to break up a peaceful protest in Ecuador. A number of protesters were beaten and journalists were also attacked, according to HRW.

Changes to legislation in the region have also been common. The pandemic has provided governments in the region with the perfect opportunity to introduce controversial and restrictive legislation, such as the extraordinary measures applied in Bolivia.

The decree, announced in April, mean journalists in the country could face up to 10 years in prison should they prove to be “individuals who misinform or cause uncertainty to the population”.

The law was removed a month later.

Freedom of Information requests – also known as access to information laws – are vital to upholding democracies and holding authorities accountable at both the state and local level. In Brazil, President Jair Bolsonaro issued a measure that ensured information requests no longer had to adhere to a deadline. The move essentially ensured that, in attempts to access public information, the government was no longer accountable.

The incident furthered concern over the Bolsonaro government and its approach to media freedom.

Wagner Rosário, current minister of transparency, supervision and control, said that authorities and relevant ministerial departments would be unable to respond to questions due to being “completely involved in the fight against the coronavirus”.

Despite this, Bolsonaro has been dismissive of the virus, claiming it as a ‘little flu’ – claims which have heightened suspicion of the media.

Similar to the fake news claims of President Donald Trump, Bolsonaro blamed media “hysteria” and a “shameless campaign against the head of state”.

“The people will soon see that they were tricked by [a] large part of the media when it comes to coronavirus,” he said.

Bolsonaro has a track record of attacking the media. By the end of August, Brazil’s National Journalists’ Federation had recorded 116 incidents where the president attacked journalists.

In 2020 El Salvador implemented legislative changes similar to those in Brazil, wherein the Salvadoran government sought to restrict access to public information.

Current president of El Salvador Nayib Bukele has faced criticism of his presidency; some claiming him to be an autocrat after storming the legislative assembly with troops in February to demand further loans.

In neighbouring Honduras, President Juan Orlando Hernández brought in a seven-day state of emergency, revoking a number of articles of the Honduran constitution. Article 72 of the enshrined text provides protections to journalists as well as the right to free expression without censorship. This article was also revoked when the declaration took place in March.

Much of the region is continuing to face concerning developments (not just during the pandemic) regarding limitations to media freedom. The pandemic has provided ample opportunity to different governments, already facing criticism for their handling of the coronavirus crisis, as well as other public issues of importance. Often the work is undermined by states insistence journalists do not help uphold democracy.[/vc_column_text][vc_single_image image=”115373″ img_size=”full” el_id=”North_Africa”][vc_column_text]

North Africa

North African governments have taken advantage of the pandemic to pass laws inhibiting freedom of expression; arrest local bloggers, journalists, and protesters; and silence foreign media.

We identified three trends in the region: the use of emergency powers to pass “fake news” bans; the crackdown on local bloggers, journalists and protesters; and the targeting of foreign press.

In April, the government in Algeria criminalised the dissemination of fake news, its stated aim being to limit the spread of false and detrimental information regarding coronavirus. Following the “false news” ban, L’Avant-Garde, Le Matin D’Algérie and DZvid all reported that their news sites had been made inaccessible from Algeria. The three outlets had all recently reported on anti-government protests and Covid-19’s development in the area.

According to Sayadi, while Egypt is the “tsar” of website blocking, Algeria has only ever shut down the internet to silence protesters and journalists. Sayadi expressed concern over this development in Algeria’s media suppression tactics: “As a civil society activist who has been working on Algeria for four years now, it’s… very strange to see [what] the Algerian government is doing.”

Also in April, Egypt’s general prosecution declared in April that disseminating false information about Covid-19 could lead to jail sentences of up to five years and fines of up to EGP 20,000.

A “fake news” law was proposed in Tunisia in March and then withdrawn in the face of public outcry. Sayadi, based in Tunisia, commented on this legislative attempt’s implications: “Tunisia… is known to be the example in the MENA countries of democracy and freedom of speech… We don’t have any websites blocked and we don’t have anything censored. But at the same time… the government is trying to get on [top] of everything that was a little bit freed by the revolution.”

Mohamed Ali Bouchiba, Secretary General of the Tunisian lawyers association Bloggers Without Chains, commented on the arrest of his client, Anis Mabrouki: “During the Covid-19 period, [Mabrouki] wrote a post talking especially about the abuses of local authorities regarding the distribution of resources like flour and oil… All he did is that he tried to show people what was happening, to peacefully criticise things that were not acceptable. Things that touch the humanity of the people who we leave outside in the sun; all this for nothing but a little food during the very delicate period of Covid-19 self-confinement.”

Blogger Emna Charqui was also arrested in Tunisia after making a satirical post about hand-washing’s importance during Covid-19. For jokingly using Koran-like language, she was sentenced to six months in prison for “inciting hatred of religion”.

Algerian journalist Merzoug Touati, having recently posted an interview with a medical professional about the state of the pandemic in Algeria, was arrested while reporting on anti-government protests. Among other things, he was charged with endangering lives by disregarding lockdown restrictions. Moroccan journalist Abdel Fattah Bouchikhi was arrested and sentenced for defamation after making an online post criticising the corrupt and unequal distribution of transport permits that authorise movement in Morocco during lockdown.

Protesters Ahdaf Soueif, Laila Soueif, Mona Seif and Rabab El-Mahdi were arrested for condemning the coronavirus exposure risks that Egyptian prisons present to detainees. They additionally called for the release of bloggers and activists like Alaa Abd El Fattah.

After quoting Canadian case projections for Egypt instead of Egypt’s official figures, Guardian correspondent Ruth Michaelson’s press credentials were revoked by the State Information Service.

The ministry of culture, youth, and sports’ communications in Morocco called the foreign press’s use of independently gathered Covid-19 data “professional misconduct” and stressed the need for journalists to meet the field’s code of ethics going forward.[/vc_column_text][vc_single_image image=”115357″ img_size=”full” el_id=”Sub-Saharan_Africa”][vc_column_text]

Sub-Saharan Africa

Thirty-four incidents were recorded on our media freedom map in sub-Saharan Africa during the pandemic and journalists being arrested or detained was common, with 10 incidents reported.

An alarming trend appeared in Zimbabwe. Two journalists were arrested in May for “breaking lockdown rules” when attempting to interview members of the government’s opposition who had sustained injuries at the hands of those suspected to be security agents.

At the time, Paidamoyo Saurombe, a Zimbabwean human rights lawyer, told VOA news: “It is disturbing. Why would you arrest someone who is going to work? You never know. It becomes scary that if you are arrested while going to work, what else will happen?”

The two journalists, Frank Chikowore and Samuel Takawira, were eventually discharged and acquitted, but actions towards journalism in the country remain worrying, such as in the case of Hopewell Chin’ono. Chin’ono brought to light a case of procurement fraud within the country’s health ministry. He was subsequently arrested for inciting violence and has since been granted bail.

Chin’ono, 49, told the Daily Maverick: “My arrest was meant to put the fear of God into other journalists – a warning that this is what happens if you tarnish the image of the president. I am worried about journalists: there is a history of abductions, there is fear.”

Under the current president Muhammadu Buhari, Nigeria has slipped to 115th in the World Press Freedom Index. Buhari’s government also implemented legislative changes in April, decreeing that all journalists should carry identity cards.

In April, there were 12 arbitrary arrests at the Adamawa State Secretariat of the Nigeria Union of Journalists.

Further arrests were made in Niger, Liberia, Ethiopia, Kenya and Somalia.

Africa, compared to the rest of the world, has been less severely affected by the pandemic; the current death toll for the whole of the continent is now nearing 36,000. However, this has not stopped the implementation of Covid-19 specific legislation aimed at reporters.

Ghana introduced the Imposition of Restrictions Act, enforcing strict measures including the government’s ability to intercept communication. Breaking this act could see punishments of heavy fines and up to 10 years in prison. The law was introduced despite Ghana already having legislation in place to enforce stricter measures in the country during times of crisis.

The crackdown in South Africa on the spreading of misinformation also sets a troubling precedent. The legislation, which criminalises malicious disinformation regarding Covid-19 related information, caused concerns that the censorship law could lead to a limited amount of access for the public to necessary information.

South Africa’s government has also clamped down upon the spreading of information by medical experts. In an effort to “reduce the noise”, new rules stopped information getting into the public sphere through non-government sources, causing frustration among journalists unable to report using expert opinion.

Additional cases of reporters being unable to report occurred in Somalia, Tanzania, Zambia and Madagascar, where Reporters Sans Frontières condemned an act of sabotage to a television channel.

The President of Madagascar, Andry Rajoelinam, was the subject of criticism by an opponent over his government’s management of the crisis. Broadcast channel Real TV planned to retransmit the heavily critical interview but one of its transmitters was sabotaged.

Other stations had received formal warnings regarding their own coverage, deemed unhelpful to the government.

Elsewhere, Liberia fell foul of condemnation from a US official in May. Assistant secretary of state for African affairs Tibor Nagy accused the West African country of media suppression. The previous month saw threats from Syrenius Cephus, Liberia’s solicitor general, to take away equipment and close down media organisations for spreading misinformation.[/vc_column_text][vc_single_image image=”115364″ img_size=”full” el_id=”Northern_Europe”][vc_column_text]

Northern Europe

Media freedom is not usually an issue in northern Europe. The top four countries in RSF’s World Press Freedom Index are all in the region and the lowest ranking country in the continent’s northern half is the United Kingdom.

This open environment has not, however, stopped the media and journalism coming under attack during the Covid-19 pandemic, underlining how we are living in unprecedented times.

In the UK, the focus from the government was on tightly controlling the news agenda. Early in the pandemic some doctors and medical staff working at the frontline were told they were not allowed to speak with the media about the shortage of personal protection equipment in particular.

One local news reporter faced criticism from government ministers after an exclusive about housing the homeless during the crisis. One seasoned lobby journalist was told they could not ask tough questions at the government’s high profile and highly managed daily press briefings.

Scotland also appeared on our map for attempts to restrict freedom of information requests during the crisis, leading Neil Mackay, a writer at large for The Herald, to say: “In what should be a badge of shame for the SNP, the Index on Censorship named Scotland alongside Brazil in a report on the erosion of FoI globally during coronavirus.”

This was not an isolated incident in Europe either. In Belgium, Alexandre Penasse, the editor-in-chief of Kairos, was banned from press conferences by the Belgian federal government after the prime minister refused to answer his question and accused him of provocation.

Control was also the issue in France where a local journalism union forced the government to remove a website that attempted to debunk misinformation around Covid-19. The union said the government should not set itself up as an arbiter of the truth around the virus.

During the pandemic, cartoonists in northern Europe have become a focus for criticism for their work.

Satirical cartoonists are often the target for criticism from the rich and powerful but these attacks increased during Covid-19. Cartoonists Rights Network International said there had been more than twice the number of attacks against cartoonists between the months of March and May this year than there normally are.

CRNI executive director Terry Anderson said: “Because so many things in their common life are gone, people are consuming information in a much higher quantity, so when a news story breaks, everyone is paying attention. If there’s a cartoon that pisses people off, it’s going to piss off far more people far more quickly.”

Cartoonists in Belgium, Denmark and Sweden came under fire for their work relating to Covid-19, including Stephen Degryse, better known as Lectrr. His cartoon of a Chinese flag with biohazard symbols instead of stars drew sharp criticism.

“I started to receive a lot of hate mail on my social media, most of it in Chinese, and a lot by fake accounts and manufactured texts. After a while I also received a death threat by one of the accounts,” he said.

Sadly, journalists have also become a target for people angry about lockdown restrictions. An incident took place in the Hague in the Netherlands where photographer Pierre Crom was attacked by market vendors. In Germany, a camera crew from TV broadcaster ZDF were attacked while filming a satirical “hygiene demonstration” for the channel’s Heute Show.

Inevitably, the Covid pandemic has required restrictions on some freedoms, such as the freedom of movement between the countries of Europe. However, it is clear that even beyond the restrictions designed to stop the spread of Covid, many European countries have not been immune from introducing other measures that have the consequence of stopping reporters from doing their jobs.

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Eastern Europe

Some parts of Eastern Europe have a growing problem with media freedom.

Turkey has been clamping down throughout President Recep Tayyib Erdogan’s rule and this was accelerated after the failed coup in 2016.

Things have been getting worse during Covid-19 in the country. Several broadcasters and journalists who have tried to share the truth about Covid-19 have been attacked. Television channel KRT was fined for questioning the state response to the pandemic, while Tugay Can, a journalist with the Izmir Gazete, was questioned by the police after writing about new cases in the city. In Kocaeli, two executives from the Ses newspaper were detained after it published a story on two local coronavirus deaths; it has since promised to publish only official stories.

Meanwhile, the country has been debating the introduction of rules that would require social media users to register to use these platforms.

Over in Hungary, Viktor Orban has been challenging Erdogan for the title of the most repressive leader using Covid-19 as an excuse.

Orban quickly moved to take what some called dictatorial control of the country during the early stages of the pandemic, allowing him to rule by decree. The country’s civil liberties union criticised the centralisation and restriction of news around the pandemic and said the government restrictions had been particularly detrimental to independent media.

Meanwhile, Hungarian cartoonist Gábor Pápai was threatened with a lawsuit by the Christian Democrat party after producing a caricature of  the country’s chief medical officer at its public health department. The cartoon shows Cecilia Müller facing Jesus crucified on his cross and pronouncing: “His underlying condition caused dependence”.

Bosnia’s Republika Srpska banned publishing “false news and allegations that cause panic and severely disrupt public order and peace or prevent the implementation of measures by institutions exercising public authority”, for example.

In Serbia, Nova.rs online journalist Ana Lalic was arrested after publishing a story on Vojvodina Clinical Center. She was later released but the complaint was not withdrawn and her equipment was seized.

In April, a group of TV reporters in Bosnia and Herzegovina were detained by police while reporting on citizens attending a Covid-19 isolation clinic in the country. Their phones were taken and their footage deleted.

The FoI restrictions introduced elsewhere in the world, such as in Scotland and Brazil, were also introduced in eastern Europe, notably in Romania where response times were doubled.

In Poland, LPP issued a lawsuit claiming damages of 3 million Polish złoty (nearly €1 million) against Newsweek Poland and journalists Wojciech Cieśla and Julia Dauksza following the publication of an article, reporting that the Polish clothing company had bought a supply of several hundred thousand protective masks and sent them to their workers in China in order to maintain production continuity.

Meanwhile, a Polish public radio station was accused of censoring a chart-topping song because it is widely believed to criticise Poland’s ruling party leader Jaroslaw Kaczyński, who had visited a cemetery during the crisis despite a ban on this activity.[/vc_column_text][vc_single_image image=”115372″ img_size=”full” el_id=”Southern_Europe”][vc_column_text]

Southern Europe

A common theme in Southern Europe during the Covid-19 pandemic has been attacks on journalists by the public.

A journalist and photographer from Il Tirreno newspaper in Italy were attacked on 23 March after going to interview a newsagent for an article on the coronavirus measures.

According to Il Tirreno, the newsagent “insulted them in front of customers, then came out of the kiosk holding the iron rod used to raise and lower the shutter, threatening them to use it against them”.

In another incident, a photographer in Turin was attacked and his camera memory card stolen after trying to report on markets that were operating illegally during the crisis.

In Kosovo, journalists Nebih Maxhuni and Diamant Bajra and cameraman Arsim Rexhepi were attacked while reporting on the pandemic. The head of the OSCE said it was important “that people remain calm in these difficult times and that journalists are allowed to work without fear of violence”.

Elsewhere state control was the issue.

In Spain, the desire by the government to keep control of questioning during official press conferences boiled over, as it has done in other parts of Europe. Over 400 Spanish journalists signed an open letter asking the government to revise the policy which means questions are sent to the press secretary, who can chose to ask them, or not, impacting on journalists’ ability to hold power to account.

Slovenia’s government communication office (Ukom) has announced that regular statements will now be made directly through Television Slovenia and the presence of media representatives is no longer possible. The Journalists Association of Slovenia says the measure is “disproportionate and restrictive”.

Slovenian investigative journalist Blaž Zgaga has been subject to death threats and a smear campaign since submitting a request for information to the government about its management of the coronavirus crisis.[/vc_column_text][vc_column_text]

Acknowledgments

Photo credits: Etienne Godiard/Unsplash (main image), Andreas Schneemayer (Beijing), Rhiannon (India), Thierry Ehrmann (Putin graffiti, Russia/CC BY 2.0), Luis Valiente (Niagara falls), Gil Prata (Brazilian police), Monica Volpin (Marrakesh), Jozua Douglas (Ghana), Dimitris Vetsikas (Copenhagen), Alexey Mikhaylov (Hungary), c1n3ma (Madrid)[/vc_column_text][vc_row_inner][vc_column_inner width=”1/2″][vc_single_image image=”115408″ img_size=”full” onclick=”custom_link” link=”https://www.jfj.fund”][/vc_column_inner][vc_column_inner width=”1/2″][vc_column_text]This report has been supported by the London-based Justice for Journalists Foundation. The foundation was created in August 2018 by Mikhail Khodorkovsky, founder of the Open Russia pro-democracy movement, an Amnesty International-recognised prisoner of conscience, and Putin’s most prominent critic, together with his former business partner, philanthropist and member of the Free Russia Forum’s standing committee Leonid Nevzlin.[/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_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_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_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]

A gathering storm: the laws being used to silence the media

01 Jun 20

[vc_row full_width=”stretch_row_content_no_spaces” full_height=”yes” css=”.vc_custom_1591025337019{padding-top: 55px !important;padding-bottom: 155px !important;background-image: url(https://www.indexoncensorship.org/wp-content/uploads/2020/06/trump-shadow-pic-for-slapps-credit-3-scaled.jpg?id=113748) !important;background-position: center !important;background-repeat: no-repeat !important;background-size: cover !important;}” el_class=”text_white” el_id=”Introduction”][vc_column][vc_custom_heading text=”A gathering storm:
the laws being used to silence the media” font_container=”tag:h1|text_align:center” use_theme_fonts=”yes” css=”.vc_custom_1590689449699{background-color: #000000 !important;background-position: center !important;background-repeat: no-repeat !important;background-size: contain !important;}”][vc_raw_html]JTNDZGl2JTIwc3R5bGUlM0QlMjJhbGlnbiUzQWNlbnRlciUzQm1hcmdpbiUzQWF1dG8lM0JiYWNrZ3JvdW5kLWNvbG9yJTNBcmdiYSUyODAlMkMwJTJDMCUyQzAuNSUyOSUzQiUyMiUzRSUzQ3AlMjBzdHlsZSUzRCUyMnRleHQtYWxpZ24lM0FjZW50ZXIlM0J3aWR0aCUzQTYwJTI1JTNCbWFyZ2luJTNBYXV0byUzQiUyMiUzRUElMjByZXZpZXclMjBvZiUyMGhvdyUyMGxhd3MlMjBhcmUlMjBiZWluZyUyMHVzZWQlMjBpbiUyMEV1cm9wZSUyMHRvJTIwYnJpbmclMjBhY3Rpb25zJTIwYWdhaW5zdCUyMGpvdXJuYWxpc3RzJTNDJTJGcCUzRSUzQyUyRmRpdiUzRQ==[/vc_raw_html][/vc_column][/vc_row][vc_row][vc_column width=”3/4″][vc_column_text]

Introduction

“It’s crippling,” explained Stefan Candea, a journalist and co-founder of the Romanian Centre for Investigative Journalism, when asked about the centre’s experience of being sued for its work. “It’s a major crippling of the workflow and of resources.”

Across Europe, laws are being used by powerful and wealthy individuals in the hope of intimidating and silencing journalists who are disclosing inconvenient truths that are in the public interest. These legal threats and actions are crippling not only for the media but for our democracies. Instead of being empowered to hold power to account, as is fundamental to all democratic societies, journalists face extortionate claims for damages, criminal convictions and, in some cases, prison sentences in the course of carrying out their work.

“For me it was a shock, maybe because it was the first time I was dealing with the penal code,” responded Polish investigative journalist Karolina Baca-Pogorzelska when asked about her experience of facing a criminal lawsuit. “I didn’t do anything wrong [but] at trial, I passed prisoners in handcuffs in the corridors. It broke me completely.”

In undertaking research into the scope and scale of vexatious lawsuits – or strategic lawsuits against public participation (Slapps) – against journalists and media outlets in Europe, Index hopes to help address the current dearth of information around the phenomenon. The purpose of this first report – which looks at EU states, the UK and Norway – is to provide a concise snapshot of the legal systems that are being abused in favour of the powerful, a worrying trend that we are seeing across the continent. The report is intended as a foundation for forthcoming research.[/vc_column_text][vc_row_inner][vc_column_inner width=”1/2″][vc_video link=”https://youtu.be/ijAAWRdkeV0″][/vc_column_inner][vc_column_inner width=”1/2″][vc_column_text]Gill Phillips, director of editorial legal services at Guardian News and Media, said: “Against the background of the growing trend in Europe of threats to reporting by using litigation as a means of inhibiting, intimidating and silencing journalists and others working in the public interest, this timely report provides succinct and helpful jurisdiction-by-jurisdiction guidance into the main legal danger areas for journalists and others.”[/vc_column_text][/vc_column_inner][/vc_row_inner][vc_column_text]The law is an essential component of understanding the extent to which journalists are vulnerable to legal threats and actions. But culture, which shapes the law but is also separate from it, should also be taken into account. Although it is more difficult to analyse, it determines the extent to which society sees the media as essential to democracy, and the extent of people’s readiness to resort to law to resolve disputes.

“A lot of public officials don’t understand the media as a watchdog. They still have this old communist kind of definition of the media. They think the media should be reporting what the government does for the nation,” said Beata Balogová, editor-in-chief of the newspaper SME, as she explained the impact of culture on the media in Slovakia.

“Very often they just use a lawsuit as a way of scaring journalists or trying to discourage them from pursuing some of the reports.”

Please note you can download this report as a PDF or view it as a flipbook.

Main report

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Austria

According to Georg Eckelsberger of the investigative media outlet Dossier, letters threatening legal action are often received by journalists in Austria.

Defamation, which is a criminal offence, is most often used. In the criminal code, it is defined as asserting or disseminating a fact that may defame or negatively affect public opinion of another person. It is punishable by a fine or one year in prison, although the latter has never been used against journalists.

The civil code and the media law also provide for significant damages to be awarded for loss of honour. The civil code is particularly open to abuse as the possible damages are uncapped and it does not provide the same weight as the media law to a public interest defence. In 2019, the civil code was used to sue Kyrgyzstani news outlet 24.kg in what was labelled by Article 19’s Barbora Bukovska as “a clear case of so-called libel tourism”.

Concerns have also been raised over the extent to which public interest is taken into consideration in other civil law cases against the media. In 2015, Dossier was ordered to pay nearly €2,000 to a plaintiff after being convicted of trespassing during an investigation, despite the findings of the investigation being uncontested.

Anyone who has been the subject of an incorrect statement in the press has the right to have a reply published, though the media has the right to refuse to publish a reply if the information was demonstrably true.[/vc_column_text][vc_single_image image=”113577″ img_size=”full” el_id=”Belgium”][vc_column_text el_id=”belgium”]

Belgium

Although defamation is a criminal offence, punishable with a fine or prison sentence, journalists are never brought to court on such charges. This is mostly due to the fact that criminal press offences can be heard only by jury-based tribunals, which are costly and time-consuming. According to a 2017 report by the Organisation for Security and Co-operation in Europe, “the media enjoy a de facto exemption from criminal defamation laws”. In practice, this does not completely stop plaintiffs from filing criminal lawsuits against journalists.

Civil defamation is addressed as a tort under the civil code. The claimant must demonstrate the fault, the damage and the causal link between the fault and the damage. There are no limits or precise guidelines on the amount of pecuniary or non-pecuniary damages that may be awarded, but damages for civil defamation usually range between €1,000 and €10,000.

Concerns have been raised about Belgian courts’ propensity to grant pre-publication injunctions at the request of private companies that claim their rights have been violated. In 2015, a court in Namur blocked the launch issue of Belgian investigative magazine Médor following a request from a pharmaceutical company that claimed it had been wrongly accused in one of its articles. The ban was annulled two weeks later.

Anyone referred to in a newspaper, magazine or audio-visual broadcast has the right to reply. Although the right of reply does not apply to internet-based media, case law applies and there is a legal proposal in the pipeline.[/vc_column_text][vc_single_image image=”113580″ img_size=”full” el_id=”Bulgaria”][vc_column_text]

Bulgaria

While lawsuits are not the only tool used to intimidate and discredit journalists in Bulgaria, they remain a serious threat to investigative journalism, which is already struggling in the country.

Criminal defamation is often used to bring legal actions against the media, including against individual journalists. Insult and slander remain criminal offences, punishable by fines but not imprisonment. Concerns have been raised around the ability of the courts to protect journalists from vexatious criminal charges, especially following the conviction of Rossen Bossev on defamation charges last year.

Compensation may be sought under the Obligations and Contracts Act, which allows for unlimited non-pecuniary damages to be awarded. The burden of proof is on the defendant. According to the Radio and Television Act, the media will not be liable for information that has been received through official channels, for quoting official documents, or for accurately reproducing public statements.

At least one effort has been made to vexatiously sue a journalist by claiming that constitutional rights, specifically the right to dignity and reputation, was violated. However, this was rejected by the court.

Anyone affected by radio or television broadcasting has a right to respond by making a request to do so in writing within seven days from the date of the broadcast. The response can be neither edited nor shortened and should be published in the next episode or within 24 hours of receipt. The Ethical Code of the Bulgarian Media provides for a right of reply in printed media, but not all print outlets have signed the code.[/vc_column_text][vc_single_image image=”113612″ img_size=”full” el_id=”Croatia”][vc_column_text]

Croatia

According to a recent survey by the Croatian Journalists Association, there are currently at least 46 criminal lawsuits and 859 civil lawsuits filed against publishers, with claimants seeking the equivalent of approximately €9 million in damages.

Defamation and insult, punishable with fines but not imprisonment, are most often used as justification to bring legal action against the media. The offence of “heavy shaming” was abolished with changes to the criminal code, which took effect in January 2020. Although journalists are acquitted in most cases, a significant number of criminal lawsuits continue to be filed.

Civil lawsuits can be brought against publishers under the Media Act and against authors (journalists) under the Obligations Act. In a case against a journalist under the Obligations Act, the plaintiff has to prove that the defendant intentionally caused the damage, but the burden of proof under the Media Act is on the publisher. According to media lawyer Vesna Alaburić, this is why journalists are rarely sued in civil proceedings. She says that when they are, lower courts often fail to strike a fair balance between the right to freedom of expression and the right to privacy and reputation. Typical compensation for non-pecuniary damages is between the equivalent of €2,500 and €4,000.

The Croatian constitution guarantees the right for individuals to correct public information that has violated their constitutional and legal rights.[/vc_column_text][vc_single_image image=”113641″ img_size=”full” el_id=”Cyprus”][vc_column_text]

Cyprus

Although the attorney general has the authority to allow for criminal prosecution in some specific cases, defamation is no longer a criminal offence and is instead addressed under the Civil Wrongs Law. The plaintiff must prove that the publication is defamatory or that there has been malice. If it is defamatory then journalists or media outlets must prove that either the information is accurate or that it is in the public interest. European Court of Human Rights principles are generally applied.

Legal actions for violation of privacy can be brought under the constitution, which protects the right to privacy and the right to private correspondence. According to Prof Achilles Emilianides, of the University of Nicosia, compensation generally ranges from €3,000 to €20,000.

Journalists have expressed frustration over the slow pace of the judicial process, with some cases continuing for up to a decade. According to research from the European Commission for the Efficiency of Justice (CEPEJ), first-instance proceedings in Cyprus are among the slowest in the EU.

Gagging orders and injunctions can be used for both privacy and defamation, and although they are rarely granted, serious concern has been raised over their use in the past.[/vc_column_text][vc_single_image image=”113644″ img_size=”full” el_id=”Czech_Republic”][vc_column_text]

Czech Republic

Defamation is a criminal offence, punishable with a maximum sentence of between two and three years in prison (depending on the nature of the alleged defamation) or a prohibition from practising a certain profession. Charges can be brought only if the published information is alleged to be false. In practice, accusations of criminal defamation are quite rare.

The civil code provides that if a person is to be held liable for the violation of the right to dignity, esteem, honour or privacy, all three of the following conditions must be met: an unjustified infringement capable of causing moral damage, moral damage having been suffered, and a causal connection between the infringement and the damage. Financial compensation must be provided if someone’s rights have been violated (unless other remedies are sufficiently effective). While the civil code does contain a “principle of decency”, questions have been raised about its capacity to prevent vexatious claims. Under the Press Act, the publisher is legally responsible for the published content.

The right to dignity, honour, reputation and private life are protected by the constitution. A right of reply is provided for under the Radio and Television Broadcasting Act and the Press Act and stipulates that it should be limited to a factual assertion rectifying, completing, or making more accurate the assertion in the initial broadcast. The publisher is obliged to publish the reply.[/vc_column_text][vc_single_image image=”113650″ img_size=”full” el_id=”Denmark”][vc_column_text]

Denmark

Denmark has comparatively few laws to regulate the press, with the main media law principle being to balance conflicting rights. Honour, privacy and personality rights are protected by the criminal code, the Marketing Regulation and case-law principles that have been adopted from the ECtHR.

Defamation is a criminal offence, punishable with a fine or imprisonment for up to one year – increasing to two years if the statement is found to have been made in bad faith. Although factual allegations may also be considered defamatory, there is an exemption from criminal liability if the statement was made where there was reasonable cause for it, in good faith, in the public interest or in the interest of the alleged offender or others.

Lawsuits against the media are uncommon in Denmark, with most complaints being brought through the press council, which will require its decision to be published in the event of a code breach.

Requests for replies must be allowed concerning factual information if the complainant might suffer from “significant financial or other damage” and if the accuracy of the information is not entirely indisputable.[/vc_column_text][vc_single_image image=”113653″ img_size=”full” el_id=”Estonia”][vc_column_text]

Estonia

The Estonian Association of Journalists expressed concern that efforts to intimidate or threaten journalists may be rising. Legal threats and actions have mainly come from private individuals and companies, but there has been an increase in legal threats from politicians in recent years. Although threats from politicians have become more direct, intense and frequent, they have not gone beyond threats for now.

Criminal defamation charges can be brought only by a judge, a representative of a state authority or a foreign head of state, and are punishable with fines but not prison sentences.

Legal action is brought mostly under the civil code, which stipulates that rights must be exercised in good faith and not with the objective of causing damage to another person. It provides for compensation to be awarded in case of damage. Lawsuits targeting individual journalists were, until recently, very rare. In November 2019, Harju County Court decided that two journalists were held liable for the content they created. A similar proceeding is currently pending in the courts.

The constitution protects individuals’ right to not have their honour or good name defamed and provides for the right to free speech to be curtailed in order to protect it. Anyone who believes his or her reputation to have been damaged by a broadcast or publication may submit a right to reply. The publication can reject a request if it is unjustified or defies generally accepted moral standards, but it would put the outlet at risk of a lawsuit.

Both press councils – Pressinõukogu and Avaliku Sõna Nõukogu – have roles in holding the media to account, but the decisions of only the Pressinõukogu are published by the media.[/vc_column_text][vc_single_image image=”113655″ img_size=”full” el_id=”Finland”][vc_column_text]

Finland

Defamation is a criminal offence, punishable with a fine. Aggravated defamation, punishable with up to two years imprisonment, can be used for acts that cause “considerable suffering or particularly significant damage”. The law requires that only false information can lead to criminal liability. One journalist who was sued for criminal defamation last year credited the prosecutor with deciding quickly that no crime had been committed. Private claims for damages resulting from defamation can be brought only in conjunction with criminal charges, and any compensation awarded is dependent upon the outcome of the criminal case.

The Tort Liability Act provides for compensation to be awarded if the plaintiff’s liberty, peace, honour or private life have been violated. Compensation rarely exceeds €10,000. Privacy, honour and the sanctity of the home are also protected under the constitution.

Although the Finnish Council for Mass Media can only sanction code breaches by ordering the media to publish its decision, the council may still have a role in creating a less litigious media culture. The council does not handle a complaint if a corresponding court case is being brought. Anyone who can demonstrate that published material is incorrect or offensive has the right to demand equal space for a correction.[/vc_column_text][vc_single_image image=”113657″ img_size=”full” el_id=”France”][vc_column_text]

France

France is known as a plaintiff-friendly jurisdiction and fears have been raised about it becoming a libel tourism hotspot. According to media lawyer Emmanuel Tordjman, legal threats and actions have been increasing against the media in recent years. He says that most actions are taken under the 1881 Media Law, but they are increasingly being taken under the criminal code in an effort to bypass the safeguards that exist under the media law.

The 1881 law guarantees freedom of expression for the press, but also criminalises defamation and insult and makes them punishable with fines of up to €12,000. When defamation is committed against public officials – including the president, ministers and legislators – the maximum fine increases to €45,000. In practice, this fine is usually much lower. Individuals claiming defamation must bring legal action within three months of publication.

A plaintiff may also choose to take a civil case against the media, but the procedure will still be subject to the 1881 law; the only difference is that civil remedies will be awarded and the defendant cannot be fined. In both civil and criminal cases, the media must prove either that the published information was true or, if it fails to meet that standard, that it was published in good faith.

Generally, the rights of journalists are well protected, as French case law is strongly influenced by ECtHR case law. In March 2019, the Paris Court of Appeal ordered Bolloré SA to pay France Télévisions €10,000 in damages for frivolous proceedings after the company sued the media organisation in commercial court for €50 million in damages over a report scrutinising the company’s activities in Africa.

The 1881 media law stipulates that anyone who has been named or depicted in the media has the right to reply. It must be published within three days of receipt, otherwise a fine of €3,750 fine is issued.

Although it does not fall neatly under the umbrella of a Slapp, the use of national security legislation to punish journalists for publishing information that is in the public interest is also a matter of significant concern. National security legislation provides no exceptions for journalists and there is no public interest defence. It carries a prison sentence of up to five years and a €75,000 fine.[/vc_column_text][vc_single_image image=”113659″ img_size=”full” el_id=”Germany”][vc_column_text]

Germany

According to research carried out by Greenpeace, although there has been a discernible rise in the number of legal threats against journalists and activists, vexatious lawsuits rarely appear in courts due to a rigorous pre-litigation mechanism.

There are three defamation-related offences under the criminal code: insult, defamation and slander. All are punishable by either a fine or imprisonment. Action may also be brought under the civil code, although the fact that the burden of proof is on the plaintiff may disincentivise such suits from being brought. There is a provision for a responsible journalism defence, but not a wider public interest defence. In 2010, two journalists received criminal fines of €2,500 each for defaming two public prosecutors, after criticising their investigations as flawed. The appeals court overturned the sentence in 2012.

In January 2019, the Federal Civil Court issued a judgment that so-called “media law warning letters” (presserechtliche Informationsschreiben), used to intimidate and threaten media outlets from republishing coverage from other media, were justified only when they had concrete information on why publication would be illegal. According to Buzzfeed Germany’s editor-in-chief Daniel Drepper, because these letters mainly targeted celebrity news the judgment has changed little for investigative journalism. In the summer of 2019, Buzzfeed received nearly a dozen threatening letters after it published their undercover work exposing an “Alpha Mentoring” programme.

A plaintiff’s capacity to choose which court a case is heard in can also be a source of intimidation for journalists, as it results in cases being brought to cities that are perceived to be more plaintiff-friendly (such as Berlin, Cologne and Hamburg). The right of reply is regulated by the press law of each German state.[/vc_column_text][vc_single_image image=”113661″ img_size=”full” el_id=”Greece”][vc_column_text]

Greece

Both criminal and civil defamation are used to intimidate and silence journalists, with public officials being among those having brought legal action against the media. There are five separate defamation-related offences in the criminal code, all of which are punishable with fines, imprisonment or both. Journalists have been sentenced on defamation-related offences, despite the ECtHR’s ruling that the imposition of prison sentences for defamation constitutes a violation of Article 10 of the European Convention on Human Rights.

In 2015, a report from the International Press Institute described Greece’s civil law framework as being “disproportionately hostile to the press”. Compensation, which usually ranges between €10,000 and €30,000, may be requested under either the civil code or the Press Law.

Serious concerns have also been expressed for the judicial system’s capacity to protect journalists from vexatious lawsuits, especially in light of a case against The Athens Review of Books. That case is now pending at the ECtHR.[/vc_column_text][vc_single_image image=”113663″ img_size=”full” el_id=”Hungary”][vc_column_text]

Hungary

According to the Hungarian Civil Liberties Union, despite the decline of independent media in the country, legal threats and actions continue to be used to intimidate and silence journalists.

Defamation, along with libel, is a criminal offence and punishable with a prison sentence. In practice, sentences tend to be converted to fines. The law favours public officials, who can count on the state’s legal counsel (free of charge) and the fact that the police will carry out the investigation. In both civil and criminal cases, proceedings are slow, sometimes taking several years to have a first-instance decision.

In 2018, the authorities brought criminal charges against the investigative journalist András Dezső for “misuse of personal data”, after he used publicly available Swedish records to challenge the claims made by activist Natalie Contessa af Sandeberg on Hungarian state television. At the time, the state prosecutor proposed to convict Dezső without a hearing.

Most lawsuits against the media are brought under the civil code. Claimants may be awarded restitution if court finds their rights to have been violated. They do not need to prove that the violation was harmful. According to investigative journalist Peter Erdelyi of 444.hu, the burden of proof weighs heavily on the media; proving that information was published in good faith is not sufficient.

There has been at least one instance of GDPR having been used to vexatiously target the media: in February 2020, a Hungarian court granted a preliminary injunction forcing Forbes Hungary to recall the latest issue of its magazine, which featured a list of the richest Hungarians. The injunction followed a complaint from the owners of Hell Energy, a Hungarian drinks manufacturer, who argued that the list was in breach of their privacy.[/vc_column_text][vc_single_image image=”113665″ img_size=”full” el_id=”Ireland”][vc_column_text]

Ireland

Although Ireland ranks highly in press freedom indexes, its legal system is among the most vulnerable in Europe to abuse by vexatious litigators. In recent years, there have been some indications to suggest it is becoming a hub for libel tourism.

The fact that defamation is no longer a criminal offence offers little comfort to journalists and media outlets due to the lengthy legal process and significant costs associated with a defence. In some cases, the burden of a lawsuit could be high enough to close a media outlet for good. Few media outlets decide to take the risk of going to court, often opting to settle instead.

Most defamation cases are heard in the High Court, where juries decide the outcome and the amount of compensation that should be awarded. According to media lawyer Michael Kealey, four days defending a case in the High Court could cost between €200,000 and €250,000 in legal fees alone. There is no maximum limit on compensation and millions of euros have been awarded in the past. Because of the time and costs associated with exhausting domestic measures, the ECtHR provides little practical protection to most Irish journalists and media outlets. Limited protection is provided by Isaac Wunder orders, which requires plaintiffs to have consent from the court to file additional lawsuits against the same party against which they’ve already filed at least one. According to Kealey, Isaac Wunder orders have been used “somewhat sparingly in civil litigation”. He said he was unaware of a successful application for such an order in a media defamation action.

Anyone who has been personally affected by information disseminated by the media can bring a complaint to the Press Council. The main sanction is publication of the Press Council’s decision.[/vc_column_text][vc_single_image image=”113667″ img_size=”full” el_id=”Italy”][vc_column_text]

Italy

Criminal defamation is commonly used and provides for sentences of up to three years. The criminal code provides for higher penalties to be applied if a political, administrative or judicial body has been defamed. Criminal cases can be brought up to three months after publication. In the past, journalists have been sentenced to up to two years in prison. Shorter sentences have been accompanied by fines of up to €15,000.

Civil lawsuits can be filed on their own or in addition to criminal lawsuits, and there is no limit on the amount of compensation that may be awarded. In the past, this has led to requests for millions of euros in damages. Civil lawsuits can be filed up to five years after publication. The time, money and resolve required to fight a lawsuit are also hugely burdensome; it can take up to eight years – and sometimes longer – to be either acquitted or convicted in a defamation case.

Right to replies are frequently requested and oblige print outlets to publish them within two days of the request if the information they originally published was either inaccurate or damaging to someone’s dignity. Despite efforts to introduce it, there is currently no legislation in place that obliges online news outlets to publish corrections.[/vc_column_text][vc_single_image image=”113669″ img_size=”full” el_id=”Latvia”][vc_column_text]

Latvia

Defamation remains a criminal offence punishable with deprivation of liberty, community service or a fine. Criminal liability applies only in cases where information that was known to be fictitious and defamatory was publicly distributed. The criminal code has also been used to charge journalists with violating the confidentiality of correspondence.

Most legal action against the media is under civil law, which allows for anyone behind the publication or broadcast to be sued. A plaintiff can request an unlimited amount for non-pecuniary damages, but compensation rarely exceeds a few thousand euros for individuals. Media outlets may face higher damages. Cases usually take four or five years but have taken up to 10 in the past. Courts almost always take ECtHR case law into account and usually rule in favour of journalists.

According to media lawyer Linda Birina, GDPR is starting to be used in place of defamation as a basis to take legal action against journalists. She expressed concern over how the court would look at GDPR cases given that there is as yet no court praxis.[/vc_column_text][vc_single_image image=”113671″ img_size=”full” el_id=”Lithuania”][vc_column_text]

Lithuania

Libel remains a criminal offence, punishable with a fine, arrest or imprisonment of up to one year. However, in practice criminal law is rarely used to bring legal action against the media.

According to a 2017 OSCE report, the Supreme Court of Lithuania often takes into account, cites and applies the standards developed in the jurisprudence of the ECtHR and the European Court of Justice.

Anyone who wishes to bring a civil claim for damages against a media outlet must first request a denial of information. A complaint can be filed with the Office of the Inspector of Journalist Ethics (out of court) without fulfilling this condition. According to the Lithuanian National Broadcaster, the right to request a denial of information is frequently used – particularly by businesspeople – who are dissatisfied with their investigations.

The civil code protects the right to privacy, honour and dignity and provides for the court to investigate requests for damages. The media is exempt from civil liability, even if the published information was untrue, as long as they can prove they acted in good faith to meet the public interest about a public person and his or her activities. According to CEPEJ’s research, Lithuania is among the fastest countries in the EU at resolving litigious civil cases, measured by the time taken by the courts to reach a decision at first instance: it typically takes less than 100 days.

The Law on the Provision of Information to the Public provides for the protection of honour and dignity as well as the protection of private life. According to the Office of the Inspector of Journalist Ethics, which investigates complaints relating to these protections, the law is rarely subject to abuse.

By law, anyone who is criticised in the media has the opportunity to justify, explain or refute false information within 14 days of publication. The outlet may refuse to publish the correction if its content “contradicts good morals”.[/vc_column_text][vc_single_image image=”113673″ img_size=”full” el_id=”Luxembourg”][vc_column_text]

Luxembourg

Defamation and slander remain criminal offences, punishable with imprisonment of between eight days and one year, along with a fine of up to €2,000. Under the criminal code, journalists and media outlets may be exempt from criminal liability, even if the published information was untrue, as long as they can prove that they acted in good faith and in the public interest, that the allegedly defamatory statement was made live, or that it is an accurate quote from a third party. In practice, criminal defamation prosecutions against the media are rare. When they do occur, courts tend to follow the case law of the ECtHR.

The Luxleaks case saw a journalist and two whistleblowers charged with domestic theft, violating professional confidentiality, violating business secrets and fraudulently accessing a database. While journalist Edouard Perrin was acquitted, the whistleblowers were convicted and received fines and suspended jail sentences.

According to Luxembourg’s Union of Journalists, legal threats against journalists are rarely followed by legal actions. Most action comes from international rather than domestic plaintiffs, with defamation and privacy laws most commonly used. The right to privacy is protected by the constitution, as is the right to the secrecy of correspondence.

Right of reply works through a registered letter that has to be sent in an “appropriate” timeframe to the media. The media has the right to comment on the reply text. It has recently been extended to online media.[/vc_column_text][vc_single_image image=”113675″ img_size=”full” el_id=”Malta”][vc_column_text]

Malta

Despite the decriminalisation of defamation in 2018, legal threats and actions remain a persistent and aggressive threat to journalists in Malta. What the European Parliament has called “serious shortcomings” in Malta’s rule of law intensify the climate of fear and intimidation facing the media.

Civil suits can be filed under the Media and Defamation Act in response to the publication of information that “seriously harms a person’s reputation”. Action may be brought against the individual journalist, the editor or the publisher. The act provides for certain defences, including a public interest defence. Up to €11,640 may be awarded in moral damages, in addition to actual damages. If the defendant published an “unreserved” correction or a reply from the plaintiff with the same importance as the original publication then the moral damages are capped at €5,000. In 2019, unpublished research by the Amsterdam International Law Clinic found that filing a separate claim for every sentence of an article (instead of grouping them into a single case) is a common tactic used to amplify the impact of a lawsuit.

Maltese journalists and media outlets have repeatedly received legal threats and lawsuits from abroad, especially from the UK and the USA, in apparent cases of libel tourism. Several public officials have been implicated in such cases. Efforts to prevent international lawsuits from being brought to bear on the media have so far been unsuccessful.

The Media and Defamation Act provides for anyone who has been misrepresented, been a victim of defamation or had his or her private life interrupted to submit a right to reply to contradict or explain the initial information. The media outlet must publish it within 48 hours of receiving it if it meets certain standards.[/vc_column_text][vc_single_image image=”113677″ img_size=”full” el_id=”Netherlands”][vc_column_text]

Netherlands

Defamation remains a criminal offence, punishable with fines, imprisonment and, in extreme cases, loss of civil rights. Higher penalties are applicable if defamation is committed against a public official or foreign head of state. In practice, journalists are rarely charged, much less convicted of criminal defamation.

According to research carried out by Tess van der Linden of Radboud University, although Dutch procedural law contains provisions that can limit access to legal proceedings if the law is being abused to damage another person, it is quite rare that cases are dismissed based on these grounds, since courts tend to examine the merits of the case nonetheless.

Action is usually brought as a tort under the civil code. Case law, including ECtHR case law, is instrumental in its application. In principle, the burden of proof is on the claimant, but in practice the defendant will also have to provide evidence that they acted in good faith. Public interest is not an absolute defence but, along with the factual underpinning of the published information, it is essential to the outcome.

Media lawyer Jens van den Brink says he has noticed an increase in data protection laws being used to try to prevent journalists from publishing their stories, but he says that the courts are resilient against the abuse of these laws.[/vc_column_text][vc_single_image image=”113679″ img_size=”full” el_id=”Norway”][vc_column_text]

Norway

Lawsuits against media outlets, editors and/or journalists in Norway usually relate to defamation, but sometimes also violation of privacy. Defamation is no longer a criminal offence and although violation of privacy continues to be criminalised, it is never used against the media.

Most claims are brought under the Compensation Act, which provides for compensation to be awarded in cases where an individual’s privacy, honour or reputation have been violated. In determining the liability of the journalist or media outlet, the veracity of the impugned statement is considered, as well as whether the statement was made in good faith. The Norwegian Union of Journalists has called for the act to protect journalists from being individually targeted, but its efforts have so far been unsuccessful. The balancing test between press freedom and the rights of the plaintiff, as developed in ECtHR case law, is fully adopted by Norwegian courts.

The Compensation Act provides for pecuniary and non-pecuniary damages to be awarded. Compensation varies significantly but, according to media lawyers, journalists may expect to pay the equivalent of between €2,200 and €6,600 for non-pecuniary damages. Damages are set higher for media outlets – typically between €10,000 and €50,000. Media outlets usually cover their editors’ and journalists’ costs, including any damages they are ordered to pay.

Most people who have concerns about how they have been treated by the media tend to complain to the Norwegian Press Complaints Commission, the Norwegian Press Association’s self-regulatory commission. The commission has no power to award damages or impose fines: it reviews complaints and issues statements on whether or not there has been a breach the Norwegian Press Association’s code of ethics.[/vc_column_text][vc_single_image image=”113681″ img_size=”full” el_id=”Poland”][vc_column_text]

Poland

Investigative journalist Wojciech Cieśla believes that there’s been an increase in lawsuits against the media in the wake of the Law and Justice Party’s (PiS) rise to power in 2015. Jarosław Kurski, deputy editor-in-chief of Poland’s largest daily newspaper Gazeta Wyborcza, told the Committee to Protect Journalists last year that the PiS has been “flooding us with lawsuits”. The fact that these lawsuits have been mostly unsuccessful demonstrates that despite the challenges facing the judiciary, Polish courts have so far protected the media from such lawsuits.

Both civil and criminal law are used, by public officials as well as private companies and individuals, to target the media. Defamation is a criminal offence, punishable with fines, restriction of liberty and up to one year in prison. Higher penalties are applicable under certain conditions, including defamation of a head of state or the Polish nation. Defamation hearings are closed to the public unless the plaintiff requests otherwise. According to media lawyer Konrad Orlik, courts usually fine journalists convicted of defamation between €1,000 and €3,000. However, last year journalist Anna Wilk was given a three-year ban on working as a journalist. Although the ban was lifted in February 2020, she remains criminally convicted and had to the equivalent of about €1,600 in fines and to charity.

Legal action may also be filed under the civil code, which protects individuals’ personal interests – including dignity, image and privacy of correspondence. By law, anyone whose personal interests are threatened may demand that the actions be ceased and that compensation be paid. According to Orlik, although common courts take ECtHR decisions into consideration, Polish jurisprudence is considered superior in most cases.

The practice of “autoryzacja” – seeking the authorisation of interviewees’ quotes before publication – is widely practiced and provided for under the Press Law, although journalists may publish unauthorised quotes if the interviewee takes too long to reply or seeks to change the answers or add new information. The Press Law also provides for a right of reply to be sent to the editor-in-chief within 21 days and to be published free of charge.[/vc_column_text][vc_single_image image=”113683″ img_size=”full” el_id=”Portugal”][vc_column_text]

Portugal

Defamation, insult and false accusation are criminal offences, punishable with hefty fines and up to two years in prison. Stricter sanctions are applicable for defaming individuals in certain professions, including public officials, diplomats, the president or foreign heads of state. However, according to media lawyer Francisco Teixieira da Mota, due to the ECtHR’s repeated condemnation of Portugal for violating the right to freedom of expression through its use of criminal defamation, courts are not as receptive to criminal complaints as they once were, and convictions have greatly reduced.

Most lawsuits against the media are brought under the civil code, which provides broad protection to individual rights – particularly the right to a good name. A journalist who publishes factual information that is capable of damaging a legal or natural entity’s good name may be ordered to pay damages.

In their decisions, some courts have raised questions about the extent to which accepting ECtHR case law is constitutional in Portugal, given that the Portuguese constitution provides equal protection to freedom of expression and individuals’ right to a good name, reputation, and privacy. The constitution also protects an individual’s right to make corrections to publicly available information.[/vc_column_text][vc_single_image image=”113685″ img_size=”full” el_id=”Romania”][vc_column_text]

Romania

Although there have been proposals to recriminalise the act of insulting the state and its leaders, defamation is not currently a criminal offence. The criminal code may be used to bring legal action for violation of privacy, but the law provides for a number of circumstances, including public interest, in which disclosures do not constitute offences.

Lawsuits are brought against the media under the civil code, which protects the right to privacy, dignity and one’s image. The constitution stipulates that the civil responsibility of the published information rests with the publisher or director, the author and the owner. According to Active Watch Romania, some but not all court judgments take ECtHR’s jurisprudence into account. It has raised concerns that judgments in civil matters are inconsistent and unpredictable. Under the civil code, there is no limit on the moral damages that may be awarded, but under the audio-visual law, the maximum fine the media can be subject to is the equivalent of about €40,000.

Emergency gag orders – known as “presidential ordinances” – are also being used to silence journalists, with claimants seeking to force the removal of information and to prevent further information from being published. Significant financial penalties can begin to accumulate if the information is not promptly removed. A gag order against the Romanian Centre for Investigative Journalism in December 2018 came into effect in January 2019, and since 30 July 2019 it has been accruing fines at a rate of about €200 per day for not removing certain Football Leaks’ stories. The gag order was filed in parallel with a civil suit, which is still pending.

Meanwhile, data protection law has also been abused to intimidate journalists and to force them to reveal their sources. In 2018, the investigative news site RISE Project received a letter from the Data Protection Agency, threatening to fine it €20 million if it failed to reveal its sources for the personal data contained in a series of articles.

The constitution states that freedom of expression may not prejudice individuals’ dignity, honour, privacy or the right to their own image. It also protects the secrecy of correspondence.[/vc_column_text][vc_single_image image=”113687″ img_size=”full” el_id=”Slovakia”][vc_column_text]

Slovakia

Criminal defamation is punishable with up to two years imprisonment or, in extreme cases, up to eight years. Although complaints of criminal defamation were quite rare until recently, media lawyer Tomáš Langer says that they seem to be becoming increasingly common.

Most actions are taken under the civil code, which protects the individual’s personal rights, including honour, human dignity, privacy, name and expressions of a personal nature. The law provides for an individual to demand compensation, which is decided by the court while taking into account the seriousness of the harm and any unlawful interferences with the individual’s rights. Research published by the IPI in 2017 found that the compensation awarded in the majority of cases was €10,000 or less, although it may reach up to €20,000.

The time and costs associated with defending a lawsuit are a significant drain on media outlets, as it can take up to 10 years for a legal action to be concluded. Most lawsuits are filed against publications (rather than individual authors), but there are exceptions. Concerns have been raised in the past over the litigiousness of the Slovak judiciary, as well as the objectivity of their fellow judges given their frequent successes.

Data protection law has also been used to try to intimidate journalists, with the Slovak data protection authority sending a letter to the Czech Centre for Investigative Journalism threatening to impose a fine of up to €10 million if it did not disclose its sources.

The Slovak press code was amended last year to grant politicians the right to reply to media content when they allege their dignity, honour, or privacy to have been violated by false statements of facts. If a media outlet fails to publish a reply, it can be fined up to nearly €5,000. The code requires that a request for reply must be sent to the publisher before an action on publication of reply can be filed to the court. However, politicians often decide to immediately file a civil lawsuit on protection of personal rights without applying for a reply.[/vc_column_text][vc_single_image image=”113689″ img_size=”full” el_id=”Slovenia”][vc_column_text]

Slovenia

Insult, defamation, slander, calumny and malicious false accusation of crime are all criminal offences, punishable with a fine of up to two years in prison. In practice, journalists are usually subject to suspended sentences or fines. Misuse of personal information, publication of private documents (diaries, letters or other private writings), unwarranted audio recording and unjustified image recording are punishable with a fine or up to a year in prison.

Civil action is more commonly used against the media, however, with action usually being taken under the civil code. Compensation may be awarded in cases where there has been an infringement of a personal right. It provides for monetary compensation for defamation of reputation even if there has been no material damage. Future immaterial damage may also be taken into account. Damages awarded usually range from €5,000 to €20,000, but may be more in extreme cases. According to media lawyer Jasna Zakonjšek, almost every decision in the area of media law is based on ECtHR case law.

The right to reply, privacy of correspondence and the protection of personal data are all guaranteed under the Slovenian constitution. Under the Mass Media Act, the right to reply allows not only for the correction of factual errors but also for “other or contradictory facts and circumstances” to be published. The media must publish or broadcast the unamended response either within 48 hours of receipt or in the next issue or episode.[/vc_column_text][vc_single_image image=”113691″ img_size=”full” el_id=”Spain”][vc_column_text]

Spain

Both civil and criminal law are used to make legal threats and bring legal action against journalists in Spain. Criminal charges are filed against journalists for defamation and revelation of secrets, punishable with imprisonment of up to two and five years respectively. No journalists have been imprisoned on these charges in recent years, however. According to the IPI, vexatious criminal charges do reach the courts, but the majority of them are dismissed.

Civil defamation claims are brought under the 1982 Protection of Honour, Privacy and Right to a Respectful Image Law. There is no limit to the non-pecuniary damages that may be awarded. The 1982 law and the 1966 Press and Printing Law are referred to in a 2014 report by the Open Society Foundations as being “designed to protect any person who may feel offended by the truth”. Although the 1966 law has not been formally repealed, it has not been used since Spain’s transition to democracy in 1978.

According to media expert Joan Barata, the Constitutional and Supreme Courts’ case law – the most important reference for domestic courts – tends to align itself with that of the ECtHR, although there are exceptions, particularly regarding criminal cases. He says that case law from both courts has been becoming more closely aligned to ECtHR jurisprudence in recent years.

The right-of-reply process stipulates that anyone directly affected by publication of incorrect or damaging information may require the media outlet to publish a corrected version, without comment and with the same prominence as the original. Failure to comply can invoke court action to determine what sort of correction is appropriate. The right to honour, personal and family privacy and self-image are guaranteed by the constitution.[/vc_column_text][vc_single_image image=”113693″ img_size=”full” el_id=”Sweden”][vc_column_text]

Sweden

The Freedom of the Press Act, one of four fundamental laws that makes up the Swedish constitution, states that no one may be prosecuted, held liable under criminal law or held liable for damages on account of an offence other than as prescribed in the cases specified in that act. The offences listed in the act include carelessness with secret information, treason and defamation.

Defamation, aggravated defamation and insult are criminal offences, punishable with fines or up to two years in prison. If the defamatory statement is found to be true or justifiable, the defendant is not held responsible. Liability for an offence lies with the responsible editor at the time of publication. The Freedom of the Press Act also provides for private claims for damages to be pursued on the basis of those offences.

In practice, due to the extensive constitutional protections afforded to the media, it is rare for legal action to be brought against a news outlet, much less for the complaint to result in a conviction. Complaints are usually made to the Media Ombudsman or the Swedish Press and Broadcasting Authority.

There is no statutory right of reply, but it exists de facto as a result of established practice under the Freedom of the Press Act and the operation of the Media Ombudsman and the Swedish Council for Media Ethics. In case of a code breach, the council requires the media outlet to publish (or broadcast) its decision and to pay an administrative fee.[/vc_column_text][vc_single_image image=”113695″ img_size=”full” el_id=”United Kingdom”][vc_column_text]

United Kingdom

Legal threats and actions remain a serious threat to journalism throughout the UK, but the nature of the threats and actions differ significantly depending on the jurisdiction. Defamation is most commonly used; although it has been decriminalised throughout the UK, the law is not the same in England, Scotland, Wales and Northern Ireland.

England and Wales

In England and Wales, the Defamation Act 2013 has helped stem the flow of lawsuits by introducing a “serious harm” threshold and placing restrictions upon the types of cases that can be brought to court there. Although the act provides for truth and public interest defences, the burden of proof that is required from the publisher places an enormous, often impossible, burden on the media. The act provides that the author, editor or publisher may be liable for the offence.

A 2009 Reuters Institute report noted that “privacy actions have become the new libel”. Efforts are often made – sometimes successfully – to seek pre-publication injunctions under the Human Rights Act.

Although data protection provides certain protections for the media, it does not prevent individuals from filing subject access requests to news outlets, sometimes in an effort to intimidate journalists and prevent them from investigating the individual. Subject access requests can put a drain on small news outlets in particular. According to Pia Sarma, editorial legal director for Times Newspapers, data protection laws are now being used to protect reputation rather than personal data.

Scotland

In Scotland, defamation remains the most common route by which the media is legally challenged. According to the Scottish office of the National Union of Journalists, threats of legal action are far in excess of the actions being brought.

Defamation law is currently based mainly on common law, with some statutory provisions. A shortage of modern Scottish case law has resulted in Scottish courts and practitioners tending to follow decisions of the English courts and the ECtHR. A reform bill was introduced to the Scottish parliament in December 2019.

Northern Ireland

Defamation law, which is most commonly used to bring legal action against journalists in Northern Ireland, is determined by the Defamation Act 1955 and the Defamation Act 1996, alongside common law. Privacy law is also used, albeit less frequently. Northern Ireland judges have in the past cited public interest as a defence for the curtailment of the right to privacy.

According to media lawyer Olivia O’Kane, alleged terrorists have used libel and privacy actions in an effort to silence investigative journalists. Although their efforts have been unsuccessful, the battles have been “extremely costly and time-consuming”. In 2013, the then editor of the Belfast Telegraph was quoted in the House of Lords as having said that “I have edited newspapers in every country of the United Kingdom and the time and money now needed to fight off vexatious legal claims against us here is the highest I have ever experienced”.[/vc_column_text][vc_single_image image=”113700″ img_size=”full” el_id=”Annexes”][vc_column_text]

Annexes

Further reading

Defamation and Insult Laws in the OSCE Region: A Comparative Study: www.osce.org/fom/303181?download=true

Media Laws Database: http://legaldb.freemedia.at/

Freedom of Expression, Media Law and Defamation: www.mediadefence.org/sites/default/files/resources/files/MLDI.IPI%20defamation%20manual.English.pdf

Media Pluralism Monitor: https://cmpf.eui.eu/media-pluralism-monitor/ 

Glossary

CEPEJ European Commission for the Efficiency of Justice

ECtHR European Court of Human Rights

GDPR General Data Protection Regulation

IPI International Press Institute

OSCE Organisation for Security and Co-operation in Europe

SLAPP Strategic lawsuit against public participation

Right to reply (right to correction) The right to reply to or to defend oneself against public criticism in the same way in which the original criticism was published or broadcast. In some countries it is a legal or constitutional right, in other countries it is practised but not codified. In theory, the provision of a right to reply should help to prevent lawsuits from being brought against journalists and media outlets

Non-pecuniary Not consisting of money

Pecuniary Consisting of money

Tort A civil wrong (other than a breach of contract) causing harm for which compensation may be obtained in the form of damages or an injunction

Acknowledgements 

Index on Censorship would like to thank the following lawyers, media experts and association representatives for their contributions and feedback:

Vesna Alaburić, Croatian lawyer; Joan Barata, media law expert; Paško Bilić, Institute for Development and International Relations (Croatia); Linda Bīriņa, Latvian lawyer; Seweryn Blumsztajn and Krzysztof Bobinski, Society of Journalists (Poland); Justin Borg Barthet, University of Aberdeen; Bea Bodrogi, Hungarian lawyer; Vibeke Borberg, Danish lawyer; Linde Bryk, Amsterdam Law Clinics; Tove Carlen, Swedish Union of Journalists; Helena Chaloupková, Czech lawyer; Maria Cheresheva, AEJ-Bulgaria; Luc Caregari, Luxembourg Union of Journalists; Pol Deltour and Charlotte Michils, Flemish/Belgian Association of Journalists; Danka Derifaj and Hrvoje Zovko, Croatian Association of Journalists; Zsuzsa Detrekői, Hungarian lawyer; Palatics Edit, Hungarian lawyer; Achilles Emilianides, University of Nicosia; Kristine Foss, Norwegian Press Association; Liana Ganea, ActiveWatch Romania; Kalia Georgiou, Cypriot lawyer; Ralph Oliver Graef, German lawyer; Jan Hegemann, German lawyer; Charlie Holt, Greenpeace International; William Horsley, Centre for Freedom of the Media (UK); Theo Jordahl, Norwegian lawyer; Michael Kealey, Irish lawyer; Sarah Kieran, Irish Lawyer; Michal Klima, Czech branch of the IPI; Päivi Korpisaari, University of Helsinki; Yannis Kotsifos, ESIEMTH (Greece); Tomáš Langer, Slovak lawyer; Ann-Marie Lenihan, NewsBrands Ireland; Andrea Martin, Irish lawyer; Estelle Massé, Access Now; Roger Mann, German lawyer; Stratis Mavraganis, Greek lawyer; Tarlach McGonagle, Leiden Law School; Nick McGowan-Lowe, NUJ Scotland; Ingrida Milkaitė, Ghent University; Daniel Moßbrucker, University of Hamburg; Nicola Namdjou, Global Witness; Antonella Napoli, Articolo 21; Tomáš Němeček, Czech lawyer; Ants Nomper, Estonian lawyer; Nelly Ognyanova, Sofia University; Olivia O’Kane, Northern Ireland lawyer; Konrad Orlik, Polish lawyer; Gill Phillips, The Guardian News and Media; George Pleios, University of Athens; Pia Sarma, Times Newspapers; Konrad Siemaszko, Helsinki Foundation for Human Rights (Poland); Andrej Školkay, The School of Communication and Media; Alberto Spampinato, Ossigeno per l’Informazione; Ivana Stigleitner Gotovac, Croatian lawyer; Francisco Teixieira da Mota, Portuguese lawyer; Helle Tiikmaa, Estonian Association of Journalists; Emmanuel Tordjman, French lawyer; Karmen Turk, Estonian lawyer; Paola Rosà, OBCT (Italy); Dori Ralli, ESIEA (Greece); Jens van den Brink, Dutch lawyer; Tess van der Linden, Radboud Universiteit Nijmegen; Caro Van Wichelen, Belgian lawyer; Giulio Vasaturo, Sapienza University of Rome; Dirk Voorhoof, media law expert; Jon Wessel-Aas, Norwegian lawyer; Jasna Zakonjšek, Slovenian lawyer.

Photo credits

Chip Somodevilla/Getty (main image), fcangia (Austria), Reine-Marie Grard (Belgium), Jim Black (Bulgaria), Ivan Ivankovic (Croatia), Dimitris Vetsikas (Cyprus), Markéta Machová (Czech Republic), Thomas Wolter (Denmark), NolensVolens (Estonia), Tapio Haaja (Finland), Walkerssk (France), Peggy und Marco Lachmann-Anke (Germany), Panagiotis Lianos (Greece), Alexey Mikhaylov (Hungary), Larahcv (Ireland), Nikolaus Bader (Latvia), Evgeni Tcherkasski (Lithuania), Pit Karges (Luxembourg), Sofia Arkestål (Malta), Николай Начев (Netherlands), André Neufeld (Norway), Rudy and Peter Skitterians (Poland), Granito (Portugal), Arvid Olson (Romania), Momentmal (Slovakia), Vilva Roosioks (Slovenia), cerqueiraricardo (Spain), Ioannis Ioannidis (Sweden), luxstorm (UK)[/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_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_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]