Tag Archives: SLAPP

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

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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. Continue reading →

SLAPPing Back at Corruption: Protecting Journalists from Frivolous Lawsuits

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Investigative journalism plays a crucial role in exposing corruption. Journalistic exposés often prompt not only prosecutions, resignations, and other forms of individual accountability, but can also serve as the catalyst for broader legal and institutional reforms. Yet investigative journalism—especially into the misdeeds of the wealthy and powerful—is risky. Journalists can sometimes face physical threats, and occasionally deadly violence. Even when their safety is not in jeopardy, journalists investigating corruption encounter legal trouble. In some jurisdictions, governments take legal action against reporters, seeking to impose large fines or even incarceration. In other cases, the targets of investigative reporting seek to derail such reporting through defamation lawsuits, even when the defamation claims lack legal merit. These sorts of suits are commonly referred to as SLAPPs—Strategic Lawsuits Against Public Participation. In many cases, the costs of defending against even a meritless defamation suit can drain the journalist or news organization’s funds, and such suits can also take a psychological toll on their targets. The litigious and deep-pocketed figures who bring SLAPPs seek to take advantage of these facts in order to intimidate journalists into silence.

Not all SLAPPs target journalists who expose corruption—the issue is much broader. But SLAPPs have frequently been used against journalists who write about corruption, and the anticorruption community therefore has a clear interest in legal reforms that would counter the threat that SLAPPs pose . So what can be done about this problem? Broadly speaking, there two primary legislative responses to the prevalence of SLAPPS: “Anti-SLAPP” laws and “SLAPPback” laws:

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

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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:  Continue reading →