22 Dec 20 | News and features
[vc_row][vc_column][vc_single_image image=”115928″ img_size=”full” add_caption=”yes”][vc_column_text]In the middle of the night on 28 November, 32 Cuban artists emerged from a five-hour meeting with officials of the Ministry of Culture. They had called on the Cuban government to refrain from harassing independent artists, to stop treating dissent as a crime, and to cease its violence against the San Isidro Movement, a group of artists and activists that had staged a hunger strike to protest the arrest and sentencing of a young rapper. The news of the encounter was shared with a crowd of about 300 artists, writers, actors and filmmakers who had stood outside for more than 12 hours to pressure ministers to open their doors. Nothing like this had ever happened before on the island.
Cubans may complain about food shortages and other restrictions on their lives, but members of elite professions rarely stick their necks out to defend anyone that the state labels a dissident. It is unheard of to exhort Cuban officials to listen to their most vocal critics in person. Although the artists of the San Isidro Movement were known to many, harassment of the group had not generated a major outcry. But in the past three years the Cuban government has issued laws imposing restrictions on independent art, music, filmmaking, and journalism, incurring the anger of many creators. When they saw live streamed videos of the weakened hunger strikers being attacked by security agents disguised as health workers, they decided that enough was enough.
“This is the first time that artists and intellectuals in Cuba are challenging the constitution,” said Cuban historian Rafael Rojas in a radio broadcast. “Their emphasis on freedom of expression and association challenges the legal, constitutional, and institutional limits of the Cuban political system.” In an interview with journalist Jorge Ramos, artist Tania Bruguera said the uprising started because, “a group of Cuban artists have gotten tired of putting up with being abused, harassed and pursued by police because of their political views and for their independence from state institutions.”
Within 48 hours, the Cuban government began to renege on verbal promises made at the meeting not to harass the protesters. President Diaz-Canel, Foreign Minister Bruno Rodriguez, Minister of Culture Alpidio Alonso, and Casa de las Americas director Abel Prieto all tweeted defamatory statements about the protesters. Cuban state television aired several programmes lambasting the San Isidro Movement, Tania Bruguera, and journalist Carlos Manuel Alvarez as mercenaries paid by the USA to destabilise the revolution. Bruguera and Luis Manuel Otero Alcantara were threatened by state security and detained for walking outside. Police blocked off and guarded the street where the Ministry of Culture is located. Several activists and independent journalists were placed under house arrest. Police shut down the headquarters of INSTAR, Tania Bruguera’s International Institute of Artivism. The San Isidro Movement was accused on Cuban television of breaking the windows of a hard currency store, but it was soon revealed that the man who committed the act was an agent provocateur working for Cuban police.
The protests come at a moment when the Cuban government has been shaken by the colossal loss of tourism revenue during the pandemic, the dwindling support from Venezuela, and the tightening of the US trade embargo during the Trump years. It was a sign of weakness that officials ceded to the demand for a face-to-face encounter with protesters.
But the state’s reaction is not surprising. Cultural Ministry officials are expected to respond to the demands of the Communist Party and State Security, not to citizens organised outside state sanctioned organisations. The slanderous campaigns on state television and social media are intimidation tactics aimed at preventing more Cubans from rising up. And it is also not unusual for the Cuban government to clamp down on dissent during economic downturns, as happened after the failed 10-million-ton harvest in 1971 and after the fall of the Berlin Wall in 1989.
What is extraordinary is that young Cuban intellectuals and artists have chosen to air their grievances publicly and collectively, and to support each other regardless of divergent political opinions. They have not been seduced by promises of favourable treatment from the state in exchange for silence, nor are they succumbing to the self-doubt that police states are so adept at inculcating in the citizenry. Most importantly, despite persistent police harassment, they are not giving up. They have adopted a name–27N–in commemoration of the day they first came together. A few members of the San Isidro Movement are part of 27N, but the group also includes representatives of other cultural fields that participated in the mass protest. 27N has formed subcommittees to attend to various tasks, from media relations to visual documentation to legal consultations.
27N continues to prepare for the next session with officials. They posted an initial list of demands in an online petition: political freedom for all Cubans, the release of the rapper Denis Solís, the cessation of state repression of artists and journalists who think differently, the cessation of defamatory media campaigns against independent artists, journalists and activists because of their political views, and the right to and respect for independence. On 27 November, Cuban officials promised a second meeting, but on 4 December the Ministry of Culture terminated the dialogue due to an “insolent” email from the protesters, who had requested to have a lawyer present and asked that harassment against them cease. Instead, the Ministry convened a meeting with small group of artists that were deemed to be loyal to the revolution. A 27N meeting at the Institute of Artivismo (INSTAR) in Havana.
The retreat may have been a result of orders from higher ranking officials as famous Cuban folk singer Silvio Rodriguez suggested. Rodriguez, considered by many to be an apologist for the regime, nonetheless understands that the officials in the cultural ministry were engaging in a defensive, though morally illegitimate, political move.
It is not surprising that prominent but independently minded Cuban artists and intellectuals such as singers Carlos Varela and Haydee Milanés have voiced support for the protesters. But it was nothing short of astonishing that the regional chapters of the Union of Cuban Artists and Writers (La Unión de Escritores y Artistas de Cuba, UNEAC) and the Hermanos Saíz Brigade on the Island of Pines posted a message of solidarity with the San Isidro Movement on 7 December on Facebook, decrying the Cuban government’s defamatory campaigns, writing on Facebook, “We will not advance toward a dialogue and mutual respect by resorting to dismissive insults.” Cuba’s political culture does not embrace public expressions of dissent within its ranks, nor do regional representatives of organization tend to speak out about activities in the capital.
Changes in Cuban culture played a significant role in the November 27 protest. For the young Cubans who rose up in rebellion, their smartphones are weapons they use both to inform and defend themselves. The legalisation of cell phone possession in 2008 and the opening of phone-based internet access in 2018 utterly transformed Cuban public discourse. Young Cubans use Facebook as an alternative public sphere in which to share news, air grievances, galvanise support for causes and cast aspersions on their leaders. Official state media has been upstaged. Cuba’s leaders are being thrust into arguments with disgruntled citizens on social media – and their responses are undignified to say the least. The Cuban government tries to block access to opposition media, but young Cubans fight back with VPN networks and mirror sites. In her daily podcast, Yoani Sánchez explains to listeners how to use a VPN. Dozens of independent journalism publications and streaming channels have blossomed on the internet, providing Cubans with news and views that would never appear in state media.
Communication between Cuban exiles and islanders is fluid and constant, signalling a complete breakdown of the state’s effort to drive a wedge between those inside and outside the country. Cubans have grown more emboldened by being able to see what others like them do and by witnessing what the state does to other Cubans. WhatsApp chats facilitate the creation of organisations based on special interests, including Cuban doctors on medical missions who share information about the oppressive labour conditions and constant surveillance they experience. The island now has independent animal rights groups, LGBTQ groups, feminist groups and anti-racist groups, all of which have organised smaller protests in recent years using social media.
The Cuban government continues to dismiss all forms of dissent on the island as the works of mercenaries trained, financed and mobilised by the United States government as part of a long-term regime change strategy. More than a few progressives outside Cuba parrot that rhetoric or at least feel obligated to prioritise their condemnation of US policies over concerns about Cubans’ civil rights. Many Cubans and Cuban-Americans, myself included, would argue that it is a mistake to rationalise or diminish the Cuban government’s repression of civil liberties and blame the embargo for the government’s stance toward its citizens. While USAID has awarded $16,569,889 for Cuba pro-democracy efforts since 2017, including financing of some of the opposition media, not all Cuban media beyond the island government’s control was invented by the CIA, nor is all Cubans’ opposition to their government a product of American meddling. Cubans do not need the United States to “help” them develop critical views of their government. “Anger rather than fear is the widespread sentiment among Cubans—a constant, built-in discomfort,” writes Carlos Manuel Alvarez. “We’re fed up with blind, doctrinaire zeal. Navigating Communism is like trying to cross a cobblestone road in high heels, trying not to fall, feigning normalcy. Some of us end up twisting our ankles.”
Most complaints of police repression, domestic violence, animal mistreatment, food shortages and poor public services in Cuba come from ordinary Cuban citizens who post their grievances on Facebook. No American planes are dropping leaflets from the sky to provide instructions. Cuban exiles send billions of dollars to relatives and friends each year, and much of that money pays for cell phones, internet, computers and other tech equipment that allow islanders to send and receive information. Important opposition media outlets, such as 14yMedio and CiberCuba, are entirely privately financed. Tania Bruguera and Yoani Sanchez have made a point of not accepting any funding from the US government, and savvy musicians and filmmakers use crowd funding campaigns to support their projects. The bulk of US State Department funding for Cuba-related activities stays in Miami, where media companies, publishers and cultural promoters can operate freely.
Cuban citizens may have limited legal rights, but they do not lack agency; they choose to apply for foreign grants or to work for media outlets funded by American sources. I do not make these points because I favour US-backed regime change – I am arguing for a more nuanced understanding of the dynamics that are leading to more frequent, more visible and more organised protests in Cuba. I am also arguing against the Cuban government’s position that does not differentiate between a CIA-financed assassin and an independent journalist who writes a brilliant essay about Cuba’s public health system, or an artist who recites poetry outside a police station.
The recent confrontation at the Ministry of Culture raised the hopes of many Cubans around the world. It also generated skepticism from those who say that dialogue with the Cuban government is futile, and that artists don’t have the knowhow to bring about political change. It’s worth recalling that the Charter 77 civic movement in former Czechoslovakia started in response to the arrest of a psychedelic rock band. The myth of Cuba as a political utopia is the revolution’s jugular: it draws tourist dollars and foreign aid, but its claim to truth is undermined by the harsh lived realities of 11 million citizens. Cuban artists and intellectuals have been enjoined to sustain that myth for 60 years. Their collective refusal to do now is a clear sign that change is on the horizon.
Coco Fusco is an artist and writer and the author of Dangerous Moves: Performance and Politics in Cuba (Tate Publications, 2015). She is a professor at The Cooper Union for the Advancement of Science and Art
This article was originally publishing in the North American Congress on Latin America here. Some minor alterations have been made to conform to Index house style[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][/vc_column][/vc_row]
01 Dec 20
Introduction
Strategic lawsuits against public participation (Slapps) are a form of legal harassment used to intimidate and ultimately silence those that speak out in the public interest. Index on Censorship’s research and analysis focuses specifically on Slapps against journalists, but activists, academics, and civil society organisations are also among those affected.
Slapps take many forms, but the most common is civil defamation. According to George Pring and Penelope Canan, American academics who coined the term Slapp in the 1990s, “accusations are just the window dressing”. This is because Slapps tend to lack legal merit and usually end up being dismissed once the facts of the case have been presented in court. This would be good news – but a judge’s decision is not the issue. The amount of time, energy, and money involved in even getting before a judge is vast and can be prohibitive, especially in cases where an individual (as opposed to an organisation) has to foot the bill for their own legal defence.
This means that just the threat of a Slapp can be intimidating enough for a journalist to feel that they should discontinue their research or reporting, or to remove their report from circulation if it has already been published. This is true even though the information is in the public interest and the journalist can prove that it is accurate.
In order to make the Slapp as intimidating as possible, journalists may be told they could be liable to pay vast amounts of money if they publish their story or if they refuse to remove the story if it has already been published. Financial gain, however, is never the aim of a Slapp. Most Slapp plaintiffs (the individuals who start the lawsuit) tend to be wealthy or powerful businesspeople or political figures. Disparity of power and resources is a hallmark of a Slapp.
Journalists facing Slapps are also more likely to be sued individually, even if they are employed with news organisations. This is done in an attempt to isolate them and deprive them of being automatically entitled to the support of their organisations.
In order to make the process as punishing as possible, plaintiffs may try to drag out the legal action. This is done in order to drain journalists of as much time, money, and energy as possible in the hope that they will give up on their reporting. Plaintiffs may also try to file multiple lawsuits in an attempt to ‘bury’ the journalist in litigation. In early 2017, one businessman filed nineteen defamation lawsuits against Maltese journalist Daphne Caruana Galizia all at once.
In some cases, plaintiffs may seek to bring cases in jurisdictions that are seen as more plaintiff-friendly. The UK is widely seen as one such jurisdiction. According to research conducted by the Foreign Policy Centre, most of the legal letters received by Europe-based journalists were sent by law firms in the journalists’ own countries (80%), but 31% had been sent by law firms in the UK.
How common are Slapps? The same survey found that 73% of investigative journalists in Europe had received legal communication as a result of information they had published. Most of these (71%) had come from corporations or other business entities. Research carried out by Index on Censorship suggests that they are becoming increasingly common.
Yet, because Slapps are usually communicated to journalists through legal letters marked ‘private and confidential’, they are rarely brought to light. This report is an attempt to bring the practice into the open. Six journalists from Finland, Estonia, Italy and Cyprus recount their experience of facing lawsuits after having published public interest investigations. (Note that these case studies bear the hallmarks of Slapp cases but we make no comment on the bona fides or legal merits of the cases themselves.)
Notice: This publication has undergone a pre-publication review by senior English defamation lawyers.
A cross-border investigation in Estonia and Finland
Estonian journalists Mihkel Kärmas and Anna Pihl work on Pealtnägija (Eyewitness), an investigative programme on the Estonian national broadcaster, ERR. “We’re like the Estonian 60 minutes, meaning that we do investigative stories but human interest stories also. We’re on every Wednesday for 45 minutes,” explained Kärmas.
In 2018, after having been contacted by two journalists in Finland, Kärmas and Pihl began working on a new investigation. One part of their investigation focused on the alleged criminal activities of individuals linked to a Finnish non-profit agency in Estonia, particularly the transfer of hundreds of thousands of euro from an Estonian shell company. These individuals are the subject of an ongoing criminal investigation in Finland. The case was also briefly investigated in Estonia before the materials were turned over the Finnish authorities. Another part of their investigation centred on the sale of a Tallinn property that had been owned by the Estonian Centre Party. One of the businessmen linked to the Youth Foundation was involved in the sale.
On 7 November 2018, ERR’s investigation was published in online articles and aired on Pealtnägija.
What happened after the investigation was published?
On 21 December 2018, the Friday before Christmas, the businessman who was allegedly linked to both the Estonian shell company and the sale of the Tallinn property filed a lawsuit against Kärmas, Pihl, and ERR claiming that the investigation had caused ‘injurious action’ and ‘spread false information’.
“We got very extensive court material where they had written up some 18 counts […] whereby we caused significant economic loss,” Kärmas told Index. “They write in their paper that the loss is up to 1 billion euros”.
“A lot of the material that we ended up publishing had already been published in Finland. It’s public knowledge in Finland, and actually a lot of it had been published in print here in Estonia,” Kärmas said. “But regardless of that, we ended up being sued.”
The lawsuit didn’t only name ERR as the defendant, it also named Kärmas and Pihl specifically. It was the first time that any of ERR’s employees were individually sued as a result of their reporting. “At the beginning I was kind of stressed – I was upset I would say,” Pihl said. “First of all I don’t have that kind of money, second of all it would mean that we can’t work as investigative journalists anymore.”
On 7 January 2019, Harju County Court ordered ERR to remove the investigation from its platforms. “It has been taken down and nobody can read it or watch it – both the written and video version. I think it’s concerning because it would be in the public interest that the story is up,” Pihl explained. “This businessman is under criminal investigation – it’s connected with a political party that’s in power, meaning that obviously the public should be able to Google it and go back to it. And also other journalists – if they write new stories – there is useful information for them.”
Support
“Fortunately our TV station was very helpful – they said that they will protect us and that we don’t need to be personally responsible, whatever happens,” said Pihl. “I think that’s the main thing that helped me to be kind of alright with this case is that the public broadcaster said that they are going to pay our court fees and whatever other costs are connected with this case.”
What if she didn’t have that support? “I think I would be very, very stressed because then I would actually think that we might just lose because I wouldn’t have the money to hire a proper lawyer or I would have to use all my savings. That shouldn’t be the case for a journalist because then I would be afraid to publish new stories against businessmen – or anybody basically.”
“In a way, we’re in a lucky position that our media organisation, by Estonian standards, is quite a large one, actually the largest one in Estonia, at least by some standards. We feel quite secure in that respect,” Kärmas said.
“But if you’re a freelancer or working for a smaller media organisation then it’s definitely a headache for instance just to cover the running legal costs. But if this becomes a norm that different parties start bringing legal cases against journalists in Estonia, then we definitely need to think about some sort of security for the journalists involved,” Kärmas said. “I can easily see that this [legal strategy] will make journalists wonder what type of stories they want to take up.”
Dragging it out
Despite nearly two years having passed since the lawsuit was filed, little progress has been made. According to Kärmas and Pihl, one of the delays was due to a motion that was filed to the court in September 2019 requesting that a video file of the broadcast be submitted. “They obviously had the video to prepare this lawsuit,” Kärmas said. “Although they had it, we were fully prepared to give it to them. There’s no obstruction from our part, but for some reason we haggled over this for months and months”.
According to Kärmas and Pihl, efforts were also made to prevent their employer from covering their legal fees. “This resulted in a short, separate litigation,” they said, during which ERR was forced to provide details of the contract Pihl and Kärmas had with their defence lawyers. “We were wondering what [they] would do with this information and in the end of July 2020 they sent a letter to the Parliament’s Culture Commission, the Finance Ministry, the Estonian Broadcasting’s governing body, and the State Audit Office asking whether they regard it appropriate use of public funds if the public broadcaster pays for our individual attorneys,” they said.
“From a personal, emotional point of view, it’s very annoying and very difficult. Each step in this litigation takes like three months,” Kärmas said. “So you refresh your memory about all the details, then you answer something, two or three months nothing happens, then there’s another turn, another letter and you have to read up on this again.”
“I realise that it’s going to take… I don’t know how many more years and we haven’t even had any hearings in the court,” Pihl said. “If the other party is angry enough, funded well enough, then they can really make your life difficult,” Kärmas said.
While the litigation continues, their investigation remains unavailable to viewers and readers. “The story is down from online meaning that every day they manage to postpone the case they win a day without the story being up. Even if in the end there would be a decision that we can put it up again. It means they would still win, because for such a long time it wasn’t available,” Pihl explained. The lawsuit is ongoing, pending a final decision from the court.
Finland
Freelance journalist Jarno Liski and his colleague Jyri Hänninen, who works for the Finnish national broadcaster YLE, began reporting on the Youth Foundation in mid-2016. “[The story] is highly significant,” Hänninen replied when asked about the case. “It’s one of the biggest financial crimes investigations in Finland.”
It was their reporting that prompted Finnish authorities to start investigating the financial affairs of senior members of the Youth Foundation in 2018. “There’s almost 20 people who are suspected of crimes and the financial harm that these guys have caused is at least 100 million euro,” Hänninen explained.
Liski and Hänninen contacted Pihl and Kärmas, after it came to light that an Estonian shell company had been used in the money transfers. “And we’ve been exchanging information every now and then and trying to help each other out,” Liski said.
Both Liski and Hänninen were shocked when they heard that the reports by their Estonian colleagues had to be removed as a result of a lawsuit. “I was shocked and I was highly surprised that it’s even legally possible in Estonia,” Hänninen said. “I don’t know how the legal system works in Estonia but I was really surprised when I heard about the court decision to censor [the story],” Liski said.
But neither was surprised that a lawsuit had been filed. The same businessman who is suing Pihl and Kärmas filed in Finland a criminal complaint for defamation against Hänninen and Liski in late 2018 for their reporting. In January 2019, the police and the district prosecutor issued its decision not to bring charges against the journalists. “I never had to be officially interviewed or anything,” Liski said.
Another businessman linked to the same investigations repeatedly tried to threaten Liski with legal action. “There was this one businessman who three or four times over two or three years contacted my editors or other superiors and made threats usually about civil lawsuits, where he would demand really big compensation – one million euro. But he never went through with those threats”.
“He was threatening that he would sue me, not the company, but me as a freelance journalist for one million euro for these stories that I’ve written,” Liski explained. “We basically laughed but the threat is real theoretically…”
“His lawyer sent a cease and desist letter to me but that never went anywhere. I think I answered something like ‘the stories are correct and if they are not then I will of course correct them if you tell me what I got wrong’ but that was left there. It’s been like two or three years since I last heard from them,” Liski said. “I’ve hoped and so far I’ve been right, that they don’t want to sue me because they don’t want the publicity. But in Estonia they did what they did and it’s still a mystery to me.”
As a freelance journalist, Liski feels that investigating and reporting on the affairs of wealthy and powerful people puts him in an especially precarious position. Despite reporting on the Youth Foundation story alongside Liski, Hänninen was not subject to the same level of intimidation. Why?
“It’s easier to target a freelance journalist than it is someone who is working – as in my case – for the Finnish national broadcasting company, which is really big with 3,000 employees, and lawyers, and all the other people who can help me out,” said Hänninen.
Liski believes that the news organisations that contract him would support him if he were sued as a freelancer. “But that wouldn’t really solve the problem,” he said. “Because the case would still require me to do so much work: to tell the lawyer what the case is about and write all sorts of answers and go to my archives and find all the documents – the evidence for the stories. And even if all the legal costs were covered, no one would still pay for the hours [it takes] to do that.”
“That would pretty much destroy my career in journalism if for one year I couldn’t write anything that someone could pay me [for],” Liski said.
Investigating a Libyan-owned company in Cyprus
In 2017, Cypriot journalist Stelios Orphanides was contacted by a whistle-blower about a Libyan-owned company in Limassol, Cyprus. “[They were] offering me information but it was a little bit too convoluted to write a daily report at the Cyprus Mail, where I used to work at the time,” Orphanides explained.
Orphanides started to receive documents from the whistle-blower and began working on an investigation with Sara Farolfi, an Italian investigative journalist who was a freelancer at the time. “It was an amazing amount of documentation that we had to go through, analyse, and make sense of,” Farolfi said.
“In March 2018 we got the go-ahead from the OCCRP [Organized Crime and Corruption Reporting Project] to investigate and so we started looking into it with the help of this whistle-blower and an American investigator/journalist who was familiar with Libya and who was offering us guidance to make sense of the thousands of pages of material we were forwarded,” Orphanides said. “This is how we came to investigate the story and report it. It took us about six months to work on this story”.
“[O]f course, what we focused on was a piece of the story. We decided to look into Cyprus because that’s where most of the stuff was coming from,” Farolfi said.
On 25 July 2018, Orphanides and Farolfi’s investigation – “Cyprus Records Sheds Light on Libya’s Hidden Millions” – was published on OCCRP’s website.
What happened after the investigation was published?
In August 2018, a lawsuit was filed against Orphanides and Farolfi by a lawyer peripherally connected to the story. That lawyer is named as a plaintiff, alongside four other individual lawyers from his law firm. The lawsuit alleges that Orphanides and Farolfi’s investigation defamed the lawyers, interfered with their professional gravitas and reputation, and exposed them to humiliation and contempt. It also alleges that Orphanides and Farolfi violated their human rights to a private and family life. The lawsuit demands compensation “either together and/or separately” from the journalists.
“It came as a shock,” Farolfi said. “From one side I was certain that we had made no mistake. But when you receive a piece of paper that says ‘you may be asked to pay 2 million euro’, then even if you feel strongly about what you’ve done, it’s scary. I felt shocked to be honest.”
Orphanides said he was less surprised when the lawsuit arrived, but was surprised at the way that it was served to him. “[U]sually when you get sued the court clerks simply give you a call and they say ‘we have this lawsuit and we would like to serve it to you’,” Orphanides explained. “But they didn’t call, or go to the office, instead [the court clerk] came to my place.”
Farolfi said that she didn’t received any notice that she was being sued. “I never received anything. They say they sent me an email, which I never received, and this is quite weird because as an investigative journalist I’m used to checking my spam inbox as well as the normal inbox. And also they had my email address because the publication was a lengthy process and, like always, we sent a request for comment. We sent this request from my email address and from Stelios’ one,” she explained.
According to Farolfi and Orphanides the would-be plaintiff had responded to their request for comment before the investigation was published. “And we included – if not the entire response – a very large portion, and the most significant parts of his response. We haven’t omitted anything of interest to the reader,” Orphanides said.
“Anyway, we were sent the lawsuit and it was personal despite the fact that we had published the investigation with OCCRP,” Farolfi said.
“It’s possible that another purpose of the lawsuit was to know who the whistle-blower that leaked this vast amount of material to us was. This is another aspect of the problem because we, as journalists, will need to protect the identity of this whistle-blower – not to make it public,” Farolfi said.
Orphanides also raised concerns around the plaintiff’s decision to buy the Cyprus Mail in early 2019. The whistle-blower first contacted Orphanides while he was working for the Cyprus Mail and many of the materials used in the investigation were sent to his Cyprus Mail address.
How did the lawsuits affect you and your work?
“I was scared mainly because I was freelance,” Farolfi said. “We were very lucky because OCCRP immediately stood by us.” Both she and Orphanides have since been hired by the organisation. “We were immediately reassured even before being hired by OCCRP. [It] is one of the few organisations, as far as I know, that stands by freelance journalists with a lawsuit like this.”
“You feel pretty alone when you get sued, because you are actually alone. I mean I was with Stelios and we had an organisation behind our shoulders, but still you feel a little bit alone. And even more so as freelancers at the time, I think. Especially me – Stelios was not freelance but maybe he felt alone too I don’t know,” Farolfi said.
“There are not many people that understand why you – as a journalist – are undertaking that risk. I remember even chats with friends, slightly looking at me like ‘are you serious you got sued for [up to] two million euro and you are still willing to do this job?’,” Farolfi said. “I remember perfectly that I couldn’t sleep that night and I was thinking ‘Well, that’s a good point. To what extent am I willing to take risks?’.
For Orphanides, the lawsuit was the last straw. “When I got sued for that [OCCRP story] then I realised that I was asphyxiated. It’s not unrelated that a couple of months later, together with my wife, we left Cyprus,” said Orphanides, who now lives in Sarajevo.
Did either of them consider quitting investigative journalism? “I mean the opposite, it convinced me that I had to double down my efforts,” Orphanides said. “I concluded that more investigations were needed and at the same time, doing some investigations in Cyprus was too risky because you would get sued all the time.”
But Orphanides said he feels that his decision to fully focus on investigative journalism means that he will never be able to return to work as a journalist at a Cypriot media outlet. “We have entered a one-way street professionally,” he said. “From the moment that you have done some investigative reporting, you are excluded from the mainstream media market [in Cyprus].”
Like Orphanides, Farolfi also said she never seriously considered changing career. “But I told myself, this is not a job that can be done as a freelancer: ‘this is teaching you that you need to move to a different set-up because this is what I’m going to have to face for any other investigation that I will work on’.”
“There is such a disproportion of forces that unless you have someone behind you – an organisation – and even for an organisation it’s a tough gig,” Farolfi said. “For them to file a lawsuit against two journalists, it just costs nothing. It just costs nothing. They are no downsides. They just need to do what they do every day. They don’t need to allocate any special resources to it. So there is this asymmetry – disproportion of forces.”
Both Farolfi and Orphanides expressed concern over the amount of time they expected the lawsuit to take. “I don’t expect this case will come to the courts before 2025 or so. Maybe longer,” Orphanides said. “Will it be easy for me to remember all the facts in five years?”
“We are lucky to have an organisation behind us. But it’s definitely time-consuming, resource-consuming and stressful,” Farolfi said. “You have this uncertainty like a sword of Damocles over your head,” Orphanides said.
Advice to journalists facing a potential Slapp case
We asked the journalists what advice they would give to fellow journalists who might be facing similar legal threats and actions. They had two main pieces of advice:
Think about the risks in advance and prepare accordingly
“The first piece of advice – a rule if you do investigative journalism – when you publish something it has to be bulletproof,” Sara Farolfi said. “You should make every effort to get all the proof that you need to make your piece more solid. You would be surprised if you knew how long it takes us to get a story published. And it’s all worth it. Totally all worth the time.”
At the same time, she acknowledged that a lot of courage is needed to publish an investigation that involves wealthy or powerful people and to stand by your story once it has been published. “You need to have a thick skin to do this job, certainly,” she said.
“There’s always a risk when you go after these kind of people who have money and influence. It will, of course, take some courage,” Jarno Liski said. “It’s unwise what we do personally when you think about your own situation – there’s not much to win and you could end up in trouble. But it’s important and I encourage people to have more courage.”
“Try to cover your back anyway. As a freelancer, especially, I should have agreed in writing with the media outlets that I write for that they will have my back if we go to court or something like that,” he said. Pihl also advised journalists to speak to their media companies about whether they will support them if they personally face a lawsuit. “I think every journalist has to ask their company if this kind of case happens, if they are going to pay for them,” she said.
“When you’re doing these kinds of investigations on financial crimes and corruption, usually they’re people with a lot of money and a lot of power and they’re using that money and power to intimidate you,” Jyri Hänninen said. “Never stop what you’re doing. It’s always important to bring these out for the general public.”
Speak about the legal threats or lawsuits you may be facing
“At the beginning it’s scary but a court case doesn’t mean that it leads to something,” said Anna Pihl. “Raising this issue is a very good starting point. If we talk more about this – if we raise our concerns about these kinds of cases to a wider audience then hopefully this trend will stop or at least it won’t increase even more.”
“If a journalist has done a crappy job and they are sued because of that then obviously the story should be corrected. But everyone who is working to a high standard shouldn’t be afraid,” she said. “You don’t have to be worried that you can’t write your stories if you’ve done everything correctly. If your work is of a high standard, in the end the journalist will win.”
Pihl also stressed the need for journalists to work together and to have a support network. “This kind of network is very important because if journalists come together they are stronger,” she said. “I don’t have to think ‘maybe if something happens I’m alone’.”
Stelios Orphanides also urged journalists to speak out. “Reporters should perhaps join these efforts that you are making as an organisation and demand that every country – in Europe at least where the rule of law is supposed to be applied – to press for changes to the legislation that would make it more difficult for such lawsuits to be filed against journalists,” he said.
“We need legislation to help us,” Liski said, “legislation and the way it is used is really important. We also have to be careful that we have protections for journalists so that they can write things about powerful people”.
Conclusion
Any effort to silence a journalist poses a threat to the public’s right to information, to rule of law, and ultimately to our democracies. Whether or not an accurate and newsworthy investigation is published shouldn’t depend on a journalist’s courage or their determination to serve the public interest above their own. Concrete action is urgently needed to support journalists and protect them from falling victim to legal harassment.
Anti-Slapp statutes exist in several states, including in Canada and the United States. Similar anti-Slapp legislation, in the form of an EU directive, would offer the most comprehensive protection not only to journalists but to activists, academics, and civil society organisations. Such a directive should provide for Slapps to be dismissed at an early stage of proceedings, for Slapp litigants to face financial penalties for abusing the law, and for Slapp victims to be given the means and support to defend themselves.
Acknowledgments
Special thanks to Anna Pihl, Mihkel Kärmas, Jarno Liski, Jyri Hänninen, Sara Farolfi, and Stelios Orphanides. Photo credits: Anh Nguyen/Unsplash (main image), PDPics/Pixabay (newspapers)[/vc_column_text][vc_row_inner][vc_column_inner width=”1/4″][vc_single_image image=”113711″ img_size=”full” onclick=”custom_link” link=”https://postkodstiftelsen.se/en/”][/vc_column_inner][vc_column_inner width=”3/4″][vc_column_text]This report has been supported by the Swedish Postcode Foundation. The foundation is a beneficiary to the Swedish Postcode Lottery and provides support to projects that foster positive social impact or search for long-term solutions to global challenges. Since 2007, the foundation has distributed over 1.5 billion SEK in support of more than 600 projects in Sweden and internationally.[/vc_column_text][/vc_column_inner][/vc_row_inner][/vc_column][vc_column width=”1/4″][vc_widget_sidebar sidebar_id=”smartslider_area_1″][vc_hoverbox image=”115716″ primary_title=”Are you facing a Slapp? Find out here” hover_title=”Are you facing a Slapp? Find out here” hover_background_color=”black” hover_btn_title=”Use our tool” hover_btn_color=”danger” hover_add_button=”true” hover_btn_link=”url:https%3A%2F%2Fwww.indexoncensorship.org%2Fam-i-facing-a-slapps-lawsuit%2F” el_class=”text_white”][/vc_hoverbox][vc_empty_space][vc_hoverbox image=”115715″ primary_title=”Read our report, Breaking the Silence” hover_title=”REPORT: Breaking the Silence” hover_background_color=”black” hover_btn_title=”Read the report” hover_btn_color=”danger” hover_add_button=”true” hover_btn_link=”url:https%3A%2F%2Fwww.indexoncensorship.org%2Fcampaigns%2Fbreaking_the_silence_report_slapps%2F” el_class=”text_white”][/vc_hoverbox][vc_empty_space][vc_hoverbox image=”115717″ primary_title=”Read our report, A gathering storm” hover_title=”REPORT: A gathering storm” hover_background_color=”black” hover_btn_title=”Read the report” hover_btn_color=”danger” hover_add_button=”true” hover_btn_link=”url:https%3A%2F%2Fwww.indexoncensorship.org%2Fcampaigns%2Fthe-laws-being-used-to-silence-media%2F” el_class=”text_white”][/vc_hoverbox][vc_empty_space][vc_widget_sidebar sidebar_id=”smartslider_area_1″][vc_widget_sidebar sidebar_id=”smartslider_area_1″][vc_widget_sidebar sidebar_id=”smartslider_area_1″][vc_widget_sidebar sidebar_id=”smartslider_area_1″][vc_widget_sidebar sidebar_id=”smartslider_area_1″][vc_widget_sidebar sidebar_id=”smartslider_area_1″][vc_widget_sidebar sidebar_id=”smartslider_area_1″][vc_widget_sidebar sidebar_id=”smartslider_area_1″][vc_widget_sidebar sidebar_id=”smartslider_area_1″][vc_empty_space][vc_hoverbox image=”115716″ primary_title=”Are you facing a Slapp? Find out here” hover_title=”Are you facing a Slapp? Find out here” hover_background_color=”black” hover_btn_title=”Use our tool” hover_btn_color=”danger” hover_add_button=”true” hover_btn_link=”url:https%3A%2F%2Fwww.indexoncensorship.org%2Fam-i-facing-a-slapps-lawsuit%2F” el_class=”text_white”][/vc_hoverbox][vc_empty_space][vc_hoverbox image=”115715″ primary_title=”Read our report, Breaking the Silence” hover_title=”REPORT: Breaking the Silence” hover_background_color=”black” hover_btn_title=”Read the report” hover_btn_color=”danger” hover_add_button=”true” hover_btn_link=”url:https%3A%2F%2Fwww.indexoncensorship.org%2Fcampaigns%2Fbreaking_the_silence_report_slapps%2F” el_class=”text_white”][/vc_hoverbox][vc_empty_space][vc_hoverbox image=”115717″ primary_title=”Read our report, A gathering storm” hover_title=”REPORT: A gathering storm” hover_background_color=”black” hover_btn_title=”Read the report” hover_btn_color=”danger” hover_add_button=”true” hover_btn_link=”url:https%3A%2F%2Fwww.indexoncensorship.org%2Fcampaigns%2Fthe-laws-being-used-to-silence-media%2F” el_class=”text_white”][/vc_hoverbox][/vc_column][/vc_row]
30 Oct 20 | Opinion, Ruth's blog
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Donald Trump taking questions at a press conference on Covid-19. Credit: WikiCommons
By this time next week, we will hopefully (subject to the courts, likely delays and the impact of Covid) know who the future leader of the USA will be. In an election that feels like it has been raging from the moment that Donald J Trump was inaugurated as the 45th president of the United States, it will be a relief when it is finally over.
But we need to look beyond the campaign hype and explore the longer term impact of the relationship between the White House and the media, which has become a little fraught to say the least.
According to the US Press Freedom Tracker, Trump has undermined and attacked the media a total of 2434 times since he was confirmed as the Republican candidate in 2016. Indeed within just days of taking office, he took the opportunity to label journalists “the enemy of the American People” in words that many saw as echoing those of Stalin and the Nazis, as the great granddaughter of Soviet leader Nikita Khrushchev wrote in Index on Censorship magazine at the time.
For a country built on the premise of a free press and with free speech enshrined in law it’s an appalling indictment of the current state of acceptable political discourse in the USA.
The First Amendment is one of the most revered and easily understood of all the additions to the US Constitution. At its heart is the idea that each and every US citizen has an inalienable right to their own freedom of speech and assembly. But it also confers the absolute protection for the press to report freely and as they see fit. It reads:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Of course when the Founding Fathers drafted this no one could have envisaged the role of social media and how, a president with a gripe, could use it to undermine the press and deliberately seek to use his power to target journalists who report on his activities in a way he does not agree with.
Ahead of the final presidential debate, Trump took to Twitter to denounce the moderator and renowned journalist Kristen Welker as “terrible & unfair, just like most of the Fake News reporters”.
Trump said to Jeff Mason, the highly respected Reuters journalist, on a visit to Arizona, “Let me tell you something: Joe Biden is a criminal, and he’s been a criminal for a long time. … And you’re a criminal, and the media, for not reporting it.”
Trump has declared that on 3 November “We’re not just running against Joe Biden. We’re running against the left-wing media…”
Trump is, of course, entitled to use his freedom of speech to criticise the press. But he has taken this a step beyond normal criticism of the media. From early in to his administration news organisations whose editorial line might not be favourable towards Trump have been barred from press briefings. And these interferences in normal due process have only accelerated, especially during the current pandemic, as our Covid media tracker highlights.
A malevolence has seeped into presidential communications that seeks to undermine and delegitimise reporters who produce editorial content that does not fit the White House narrative. And as we head to the election, it seems that the Trump administration increasingly wants to take aim at the First Amendment and double down on their attacks on the free press.
This month, in an unprecedented move, the head of the US Agency for Global Media (a Trump appointment) has scrapped the ‘firewall’ that protected the editorial freedoms of Voice of America and other broadcasting agencies that receive public funding. The repeal memo claimed that the firewall was in conflict with the agency’s purpose to promote the interests of American overseas. Michael Pack, the CEO of the IS Agency, claimed that the agency “do not function as a traditional news or media agency and were never intended to do so.” He added: “For example, the Networks are to articulate the American perspective while countering international views that undermine American values and freedom, or that might aid our enemies’ messaging.”
The Agency for Global Media runs Radio Free Europe/Radio Liberty and Radio Free Asia. Both are intended to provide independent news to audiences in countries where media freedoms are curtailed and yet now they may be used to produce nothing more than partisan propaganda for whoever wins the White House next week.
And as Index reported earlier this week, plans to change the I visa terms for foreign journalists operating in the USA have been suggested. If passed, these plans would represent a serious setback to media freedom.
None of this is even vaguely in keeping with the spirit of the First Amendment. It does little to support and promote the USA’s place in the world. Instead it undermines global free speech and as such shouldn’t be ignored by the wider global family.
On Tuesday we will hopefully find out what the USA’s long term priorities are. Be assured that we will be shining a light on whoever wins if they fail to protect our global freedom of speech and if they fail to promote and protect the media.
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