Anti-Defamation Laws: Politicians Abuse Them, But Can Anticorruption Activists Use Them?

Defamation is a scary word for the anticorruption community. After all, anti-defamation laws are frequently abused to harass, deter, and discredit people who accuse politicians of misconduct. But defamation suits can also be an important tool for anticorruption activists to defend against false and misleading attacks designed to undermine their work. As smear campaigns deter and diminish anticorruption advocacy, we must be cautious in our attempts to weaken or repeal anti-defamation laws, for they may prove to be a necessary line of defense.

To understand why anti-defamation laws can be so important to activists, take the case of Peruvian journalist Gustavo Gorriti. Gorriti has spent much of his life trying to investigate and expose corruption. When the Lava Jato scandal rocked Latin America, his publication, IDL-Reporteros, helped uncover millions in bribe payments to public officials. Gorriti played an important role in what shaped up to be one of the most consequential anticorruption investigations in the continent’s history.

Unsurprisingly, Gorriti came under fire for his investigative work. Among other lines of attack, stories started to pop up in some media outlets falsely accusing Gorriti of having ties to directors of the bribe-paying construction company that he had investigated; these stories were clearly part of a campaign to undermine his credibility by spreading false or misleading information. This is no isolated case. Corrupt politicians and their supporters routinely make use of disinformation campaigns to discredit accusers. The problem is only getting worse, and the consequences are serious. Such campaigns often spark violence and harassment against anticorruption activists, and they can even lead to the opening of criminal investigations purporting to act on the (fabricated) allegations. Other times, disinformation undermines public support for important reforms. These consequences make life harder for the people who, like Gorriti, want to expose corruption.

What did Gorriti do about this problem? Trying to persuade the public through counterspeech wasn’t very helpful. But Gorriti had another idea: sue for defamation. If persuasion couldn’t overcome the lies thrown at him, then perhaps he could use the legal system to hit his attackers where it hurts—their pocketbooks. Claiming to have borrowed the idea from a Finnish journalist who tried the same, he did his research on who was spreading lies and brought them to court. His strategy was successful, and Gorriti scored some important victories, including getting his opponents to retract their false statements and apologize.

Although anticorruption activists and journalists rarely file suits against their attackers, more might (and for that matter, should) start to follow Gorriti’s example. Recent defamation suits against media companies and politicians show that they have a real impact. They correct the record and deter people from initiating smear campaigns in the first place.

Some anticorruption activists, and many journalists, may be instinctively skeptical of anti-defamation laws. This skepticism is due in part to how politicians and other powerful figures use so-called SLAPP suits—Strategic Litigation Against Public Participation—to harass journalists and activists with meritless defamation suits. Even if these defamation claims lack merit, defending against them can be expensive and stressful, and even if the legal claims seem weak, they can still threaten their targets with potentially ruinous liability. SLAPP suits thus create a chilling effect, discouraging corruption reporting.

The abuse of defamation law in SLAPP suits gives it a bad rap in the anticorruption community, and understandably so. But it is important to recognize the chilling effect created by defamation itself. Disinformation about journalists and activists can lead to violence, harassment, and prosecution. Journalists who dare to publish stories exposing corruption put themselves in harm’s way as a result. And media freedom serves little purpose if anticorruption reporting can be so easily discredited and obscured by fake news. Anti-defamation laws can be abused, but they can also serve a valuable purpose.

Does this mean that anticorruption activists might need to rethink their typically unqualified support for tightening limits on defamation actions, for example through anti-SLAPP laws? Perhaps. Weakening anti-defamation laws could backfire on activists who bring suits for good reasons. But there are likely other ways to address the SLAPP problem. Indeed, most anti-SLAPP laws do not weaken or otherwise change the underlying law of defamation, but instead focus on reducing the costs of defending against defamation allegations, and on punishing suits brought primarily to harass the defendant. These are the sorts of reforms that anticorruption activists, and others, ought to embrace.

To be clear, some anti-defamation laws go too far and ought to be amended or repealed. Criminal defamation laws, for instance, impose far-too-severe penalties that exacerbate chilling effects. State-enforced anti-misinformation laws are equally worrisome, since they give the government (and politicians) more latitude to target critics without the legal constraints of traditional defamation suits, such as the requirement that the plaintiff demonstrate reputational harm. But privately enforced defamation laws—that prohibit the knowing or reckless dissemination of verifiably false information, narrowly defined—can appropriately balance free speech concerns with the recognition that defamation can cause serious damage. The anticorruption community can and should support stronger safeguards against abuse of anti-defamation laws, while still recognizing that those laws, if properly and narrowly drafted, can be a crucial source of protection from the malicious spread of false and misleading information—a protection that the anticorruption community may find welcome.

1 thought on “Anti-Defamation Laws: Politicians Abuse Them, But Can Anticorruption Activists Use Them?

  1. What a great post, Micah! You do an excellent job explaining the double-edged sword that anti-defamation laws can be. I’m curious – do you see a meaningful difference between activists bringing these defamation claims in the first instance as opposed to filing them as counterclaims to SLAPP suits by politicians (perhaps a narrative distinction)? Have such counterclaims been filed before?

    Apart from that, it seems to me like allowing defendants to recoup attorney’s fees, which I take to be a component of anti-SLAPP laws, is the best deterrent against SLAPP suits. Then again, wealthy politicians might be willing to take the monetary loss as a means of scoring reputational blows against activists.

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