Investigative journalists in Europe and elsewhere probing financial crimes are increasingly facing vexing lawsuits, many filed in British courts, aimed at intimidating them into silence, according to a global survey published this week.
"What came across resoundingly from the results of the survey were that legal threats really are a key concern," said Susan Coughtrie of the Foreign Policy Center, a London-based research policy organization, which oversaw the survey examining pressures reporters in 41 countries face when trying to unearth corruption.
Respondents said they faced many different efforts to intimidate them, from being trolled aggressively on social media to physical harassment and surveillance as well as being blacklisted by governments, but the threat of legal action is having the biggest impact on their ability to continue their work. The legal fees involved in defending against lawsuits are often enough to force a reporter or media company to back down.
Seventy-three percent of respondents said they had received legal threats clearly aimed at silencing them. Corporations and wealthy individuals will often shop around looking for foreign jurisdictions to file lawsuits. Defamation laws in Britain tend to favor those bringing a defamation action rather than the defendants.
"Investigative journalists uncovering financial crime and corruption are being subject to a significant amount of risks and threats, which has a chilling effect on their ability to continue to bring crucial matters of public interest to light," said Coughtrie.
"Particularly alarming is the level and frequency, as highlighted by our survey, of legal threats being sent to journalists all over the world. The U.K. is the highest international source of these legal challenges — almost as high as EU countries and the U.S. combined — which points to a clear need for further review to prevent potential vexatious misuse of the U.K. legal system," she added.
Lawsuits filed by corporations and wealthy individuals against public-interest journalists prior to the publication of a report and after - aimed at silencing them - are known as SLAPPS, an abbreviation for strategic lawsuits against public participation. Critics of such lawsuits say they are cynical bids to tie up journalists in complex and expensive legal disputes.
"The most shocking finding of this report to my mind is the fact that the U.K. appears to be the most widespread center for financial crime, and also for legal threats made against journalists," said Oliver Bullough, investigative journalist and author of the book Moneyland: The Inside Story of the Crooks and Kleptocrats Who Rule the World.
"In allowing this abuse to continue, the U.K. government is not living up to its own stated commitments to protecting media freedom," said Sarah Clarke of ARTICLE 19, a British human rights organization.
The rise in vexatious lawsuits has prompted mounting alarm in Europe. Lawmakers, journalists and rights campaigners have been calling for a remedy. The Council of Europe's Commissioner for Human Rights, Dunja Mijatović, criticized SLAPPs last month saying, "in some countries certain rich and powerful people use specious lawsuits to censor, harass and ultimately suppress critics. This is a long-standing problem but one that has been increasing in magnitude in recent months."
SLAPPs "pose a significant and growing threat to the right to freedom of expression in a number of Council of Europe member states, perverting the justice system and the rule of law more generally," she said.
Daphne Caruana Galizia
She cited the case of Maltese reporter Daphne Caruana Galizia, who was killed in October 2017 when a car bomb was detonated inside her vehicle, prompting an international outcry. Four men have been detained in connection with the murder, including Maltese businessman Yorgen Fenech, owner of a Dubai-based company, who was arrested on board his yacht.
Caruana Galizia was battling more than 40 civil and criminal defamation suits at the time of her murder. Twenty-five of those lawsuits have continued posthumously and are being fought by her family. Mijatović has proposed a variety of reforms to protect reporters from abusive litigation, including allowing for the early dismissal by judges of obviously specious lawsuits and reversing the costs of proceedings forcing plaintiffs to pick up the tab from the get-go.
This month, IFEX, an international network of more than a hundred independent non-governmental organizations that defends and promotes freedom of expression, has been highlighting the case in Slovenia of investigative news website Necenzurirano, three of whose reporters have been hit with 39 criminal lawsuits by Rok Snežić, a tax expert and unofficial financial adviser to Prime Minister Janez Janša.
The European Commission announced in October that it intended to act against SLAPPS. "Our democracy needs watchdogs; it needs free and pluralistic media," said Věra Jourová, an EC vice president. But it is not clear yet what action the European Commission is proposing to prevent journalists from being routinely forced to shy away from covering certain stories, even when they are factual.
Thirty-one states in the United States have enacted anti-SLAPP laws, nicknamed SLAPP-back laws. Several function by allowing a defendant to file a motion to dismiss a lawsuit on the grounds that the case involves protected speech on a matter of public interest. The plaintiff then bears the burden of showing a probability that they would prevail, if the case went on to be heard. If the plaintiff fails to meet the burden, the lawsuit is dismissed with the plaintiff often required to pay a penalty for filing the case in the first place.