Defending Those Who Expose Corruption: Defamation Safe Harbor Legislation to Protect Investigative Journalists

In May 2017, Russian journalist Dmitry Popkov, who investigated corruption in local governments, was shot five times and found dead in his backyard. The perpetrators were never identified. In October 2017, a car bomb killed Maltese journalist Daphne Caruana Galizia, who had been investigating possible corruption by Maltese Prime Minister Joseph Muscat. Although three suspects were charged with carrying out the attack, the masterminds behind the plot were never found. And in February 2018, an unidentified hitman killed Slovak journalist Ján Kuciak and his fiancée, both 27, in the couple’s newly-purchased home. Kuciak was in the middle of an investigation of the Italian organized crime group ’Ndrangheta and its corrupt ties to Slovakia’s governing political party SMER. Slovak officials arrested seven suspects allegedly connected to the ’Ndrangheta and the murder, but did not find enough evidence to file charges and released them 48 hours later. Although weeks of mass demonstrations led to the resignation of the Slovak Prime Minister, the perpetrators of Kuciak’s murder were never held accountable.

Sadly, these are not the only such incidents. Reporters Without Borders states that last year 39 journalists were murdered because “their reporting threatened political, economic, or criminal interests.” And in many of these cases, despite government assurances of a thorough investigation—and despite a 2013 United Nations Resolution that urges Member States to conduct “impartial, speedy and effective investigations” of journalist murders—the perpetrators are never brought to justice. Perhaps this is not surprising. After all, these murders are often associated with sophisticated crime syndicates that leave few traces for investigators to follow, and an effective investigation would require significant resources and expertise beyond the capacity of many governments. (In some cases, such as Caruana Galizia’s murder, assistance from Dutch forensic experts and the FBI enabled local authorities to arrest suspects linked to the attack, but this is not regular practice.) Perhaps more importantly, resolving the murders of journalists who expose public corruption is not always in the interest of government officials, at least when doing so might provide further evidence of the government’s corrupt acts and expose officials implicated in the journalist’s work.

Given these weaknesses, many corrupt officials and associated criminal networks may conclude that killing a journalist before a story is published may be an effective way to eliminate it altogether. Sadly, this is indeed often the case. But not always: One of the striking things about the recent case in Slovakia is the decision of Kuciak’s employer, the news website Aktuality, to publish his unfinished article. And it appears that this decision to publish, not just the murders themselves, contributed to the massive public outcry and political backlash that has already forced the Prime Minister and several other high-level officials to resign.

Publishing a journalist’s unfinished article is not common practice for newspapers; it was likely done in the Kuciak case because the investigation was almost finished. Usually newspapers are hesitant to publish due to fear of defamation lawsuits, which are a drain on the publication’s resources and reputation. So-called SLAPPs (Strategic Lawsuits Against Public Participation) are filed in jurisdictions with strong defamation laws in order to intimidate journalists and media outlets, and prevent them from publishing certain articles. Some members of the European Parliament have been pushing the European Commission to protect investigative journalism by adopting anti-SLAPP measures.

Another reform measure, which hasn’t yet been part of the conversation, would be to create a special exception to defamation laws that would apply when a media outlet publishes a story, on a matter of public concern, by a journalist who was murdered before the story was complete. In other words, countries should enact a “safe harbor” from the ordinary operation of defamation laws in these special circumstances—one that would allow for the expedient dismissal of defamation suits against media outlets that publish the incomplete work of a murdered journalist.

Creating such a safe harbor would have a number of important advantages, and only very limited downsides: 

  • First, and perhaps most importantly, this special safe harbor would reduce the incentive to kill journalists in the first place. If media outlets were free to publish their slain employees’ unfinished work without the fear of lawsuits, corrupt actors would be on notice that allegations in a journalist’s article would come out regardless of whether their author is alive. Indeed, such a rule might make the killing of the journalist counterproductive for the corrupt or criminal actors who fear exposure, because the killing will remove a potential legal source of delay or non-publication. Of course, there’s always the risk that corrupt actors will target a worrisome journalist when his or her investigation is still in its early stages. But the targets of the investigation might not know how far the story has progressed, and might fear that even a barebones article, published after a journalist’s murder, might raise unwanted suspicions.
  • Second, in those tragic cases when a journalist is murdered, the publication of his or her unfinished work increases the odds that the government will be under sufficient pressure to conduct a thorough investigation. Recent events in Slovakia are instructive: In the weeks following Aktuality’s article, tens of thousands of people protested to demand an independent investigation into Kuciak’s murder. Additionally, some 20 media freedom organizations sent a letter to the European Commission, calling for its high-level officials to maintain regular communication with local police authorities to ensure that investigations into journalist deaths are “full, thorough and independent.” In response, the ruling SMER party appointed the country’s non-partisan health minister Tomáš Drucker as the new interior minister, to lead an independent investigation into the murder. This is not to say that the Slovak government would have compromised the investigation to protect its officials. But if a government did have the desire to safeguard any implicated politicians—especially because it would delegitimize the governing party and create instability—it would have a motive not to follow the journalist’s work. Legislation exempting newspapers from defamation suits would take that decision away from the government and make the information public, so that governments do not put the murder investigation on the backburner in light of their consideration of other interests.
  • Third, the publication of the journalist’s unfinished work also ensures that the information he or she uncovered is publicly exposed. Here, there is a complication: Those countries with strong anti-defamation laws have them because they’ve concluded that the public’s right to know (and the journalist’s right to publish) must be balanced against the countervailing interest of individuals not to be subjected to false or misleading attacks that damage their reputations. Different countries strike this balance differently. But in the case where a journalist has been killed, the balance of interests is different, because the odds that the journalist’s story contained important information are higher. Moreover, adding the proposed “safe harbor” to defamation laws will not reduce journalists’ incentives to be careful in writing stories without defamatory allegations—because the journalist would only receive the “benefit” of this weaker defamation law in the event that she herself has been murdered.

Addressing the serious problem of violent, often lethal attacks on journalists bravely working to expose corruption will require much more comprehensive measures than an adjustment to defamation laws. In the face of such a serious problem, perhaps my proposal here may even seem like a trivial reform. But the recent events in Slovakia highlight that the publication of a murdered journalist’s unfinished story can make a huge difference. Insofar as defamation laws are one of the reasons such things don’t happen more often, countries should consider adopting—and perhaps should be pressured by the international community and civil society to adopt—a special “safe harbor” exception that allows media outlets to publish the unfinished work of its murdered journalists. Hopefully, this will make violence a less attractive strategy for those who would seek to prevent information about their corrupt activities from seeing the light of day.

3 thoughts on “Defending Those Who Expose Corruption: Defamation Safe Harbor Legislation to Protect Investigative Journalists

  1. A fine starting point for discussion — thank you for raising this vital issue. Honest investigative journalism is suffering these days, & I appreciate your post.

  2. This is a thoughtful piece. Two observations. 1) Journalists are murdered more often than many people realize. At least two out of three of all journalists killed worldwide have been murdered, according to data compiled by the Committee to Protect Journalists. And the murderers get away with complete impunity in nearly nine out ten of all journalist murder case. Moreover, a journalist is murdered on average somewhere around the world at least once every two weeks. So journalists being murdered are dying in even more lawless environments than the author’s piece would suggest. 2) What helps deter journalists from following in their colleagues path after they are murdered is far less fear of being sued for defamation than fear of being murdered. Defamation suits do play a role in restricting the press, especially in Latin America including in nations like Brazil. But the use of violence to restrict the press tends to be a separate track than use of defamation suits, and these two tracks rarely intersect.
    Frank Smyth
    The links below may help. Although CPJ has been reworking their data some of the trends may be less clear.
    https://cpj.org/data/killed/?status=Killed&motiveConfirmed%5B%5D=Confirmed&type%5B%5D=Journalist&start_year=1992&end_year=2018&group_by=year
    https://cpj.org/data/killed/?status=Killed&motiveConfirmed%5B%5D=Confirmed&type%5B%5D=Journalist&typeOfDeath%5B%5D=Murder&start_year=1992&end_year=2018&group_by=year

  3. Very interesting post, thanks for sharing Victoriya. This seems to make so much sense, I wonder what reasons if any countries have not already pursued this measure.

    Also @theWritingwhales, thanks for sharing those statistics, which are incredibly troubling.

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