Anti-SLAPP conference: governments must protect media freedom

It is vital that governments protect media freedom, the rule of law, and democracy through protecting journalists from Strategic Lawsuits Against Public Participation (SLAPP) designed to silence and intimidate, the panellists at the Anti-SLAPP Conference on Monday said.

Organised by Justice for Journalists and The Foreign Policy Centre, the conference runs over two days and brings together global experts on media, SLAPP, and policy. Baroness Helena Kennedy, a barrister and a member of the UK’s House of Lords, gave the opening keynote speech, stressing that it’s crucial that legal intimidations and SLAPPs are countered.

Assassinated journalist Daphne Caruana Galizia was facing dozens of SLAPPs at the time of her killing in 2017, as she endured an onslaught of attacks aimed at silencing her and the reports of sleaze, corruption and criminality in government and business.

Since then, other independent newsrooms in Malta have also been targeted by SLAPPs. The Shift has received multiple threats of SLAPP in the form of frivolous local lawsuits, as well as via several threats of heavyweight international litigation.

The Maltese government has refused calls to create national legislation, stating it is not needed as existing laws protect journalists. Despite that, all independent newsrooms in Malta have been hit by SLAPP lawsuits.

The conference has congregated journalists, NGOs, press organisations, authors, legal experts, legislators and other professionals from across the globe, seeking a solution to what’s been termed one of the greatest threats to media freedom in existence today.

Journalist Nick Cohen moderated the first panel of the event. It involved Legal Advisor at English PEN Charlie Holt, Policy and Campaigns Manager at Index on Censorship Jessica Ni Mhainin, Legal Advisor at the European Centre for Press and Media Freedom Flutura Kusari, and Lega Researcher at the Business and Human Rights Resource Centre Lady Nancy Zuluaga Jaramillo.

“Slapps are not a new phenomenon. As long as people have been able to sue each other, the rich and powerful have used it as a tool to silence people,” said Holt. 

He explained these lawsuits are “parasitic” and fueled by deficiencies in the law, high legal costs, and litigious culture.

Additionally, SLAPPs have flourished amid growing populism and polarisation.

“It’s easier in places where there is political tribalism to stand up in court with a straight face and say a journalist is propagating fake news,” he added.

Holt also said that while we wait for governments to stand up against SLAPP and protect media workers, as civil society and media organisations, we have to make sure the suits backfire.

“We have to create a public backlash and delegitimise their use in the court of opinion…build legal resilience, build support, raise awareness, toxify their use, and advance anti-slapp solutions.”

He noted that civil society is fighting back, and while there are reasons to be optimistic, there is still a long way to go.

Kusari spoke about the significant anti-SLAPP movement in Europe that started after the 2017 assassination of Daphne Caruana Galizia, who was facing almost 50 SLAPP at the time of her death. Most were filed by politicians and their associates, and many have been inherited by her family, who are being forced to defend them.

But Kusari noted that journalists were not always willing to speak up about SLAPP as “there is a stigma, you feel that your investigation and stories are being questioned.” She added that her organisation had put a “lot of effort into getting journalists to speak up” and “name and shame” the lawyers involved.

Cohen noted that many SLAPPs involve a group of “amoral lawyers in London that will work for anyone.”

Ni Mhainin said that the rise in SLAPPs both in the UK and further afield was happening at the same time we are seeing an increase in physical and verbal attacks against journalists.

“This creates an environment where it is acceptable to threaten or to sue a journalist. Trump is at the forefront of this,” she added.

The consensus among the panellists was that journalists must make public the threats against them. Only in this way can the pressure of public opinion suppress those that attack media workers.

Another panel which took place on Monday was “London Calling: Why is England the ‘ideal’ SLAPP jurisdiction?”, a panel which explored how London has become one of the main hot-spots for SLAPPs. The panel featured Peter Geoghegan, the editor-in-chief of Open Democracy, as the host, and Per Agerman, Alex Papachristou, Gill Phillips and Susan Coughtrie as the panelists.

Papachristou, the executive director of the Cyrus R. Vance Centre for International Justice, described how the “threat of litigation in the UK is a scourge” fueled by the UK’s excessively formalised, “convoluted and complicated” system which “produce a high volume of legal threats and actions aimed at journalists”. He further argued that the only solution to the problem would be legislative.

“There must also be enough political will to control the reputation-laundering and money-laundering industries of the UK, there is too much self-interest in this system and there are far too many people with too much money using it to protect themselves,” Papachristou said.

Susan Coughtrie, project director at the Foreign Policy Centre, said a survey which elicited responses from 63 journalists in 41 countries, found that three out of every four respondents were concerned about legal issues, 91% of which were defamation suits stemming largely from the UK.

“It is a very expensive legal fight; about ten years ago, statistics showed that is roughly 140 times more expensive than the EU average to fight a case in the UK. The lengthy court proceedings do not help, either,” Coughtrie stated, referring to how newsrooms are often waiting for months or even years before the claim is actually heard out in a court, bleeding legal fees in the process.

Gill Phillips, director of editorial legal services at UK newspaper the Guardian, outlined how journalists were facing threats even before publication, with threatening legal letters claiming that further pressure would be applied should an article deemed to be defamatory be published.

“What’s supposed to be an ethical process in which journalists reach out to get a comment or try to obtain more information has instead become a battleground in which companies do not answer questions, throw flak and smokescreens to distract from the main story, and threaten with more legal action,” Phillips said.

Agerman, who is an investigative freelancer who also works for Swedish magazine Realtid, recounted his experience being sued from London after publishing a story concerning questionable financing practices in relation to a company that was about to go public. He explained that he and his colleagues were fighting to have the case heard in Sweden given that London’s courts allowed the firm launching the defamation suit to sue them personally while Sweden’s courts do not.

The conference continues on Tuesday.