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:  Continue reading

A Dangerous Retreat from Anticorruption Aid

The US government’s drive to cut foreign aid in favor of increased military spending is shortsighted, even if one focuses only on national security objectives. This is especially true for aid devoted to supporting anticorruption efforts, which can act as a powerful tool for improving regional stability without direct, overbearing involvement in a region. The past decade has shown how difficult on-the-ground involvement can be, and anticorruption-focused aid can help secure dangerous regions and allow the US to withdraw some of it physical presence abroad.

One striking example of the danger that corruption poses to security and stability can be seen in the context of land use and land rights. When corrupt officials deprive people of their land, destroying both their livelihoods and often their local communities in one move, they may push those affected into a situation where violence may seem like the only option. For example, recent land seizures in the Kurdistan Region of Iraq—with Kurdish members of the community either relying on tribal connections or direct bribery to convince local judges to push through illegal land transfers—have caused an outcry among the primarily Christian and Yazidi victims and partially contributed to the formation of religious minority militia units that now threaten to create more violence if they cannot return to their seized homelands. Similar pairings of violence following land seizures were also found in Zimbabwe in the early 2000s. And in Afghanistan, corrupt land seizures have been a consistent issue throughout the past decade. This danger remains a concern not just for those affected, but for the international community, as violent movements can lead to destabilization. Continue reading