Slapped down

The rich and powerful are using ruinous lawsuits to target journalists and activists who hold them to account. Tina Burrett explores the threat.

Credit: Andy K

Daphne Caruana Galizia was on her way to the bank when her car blew up. A bomb had been planted under the driver’s seat while it was parked outside her home in Bidnija, Malta. The investigative journalist was trying to gain access to her accounts which had been frozen in connection to a libel case against her by Malta’s Economy Minister Chris Cardona.

But this wasn’t the only legal action Caruana Galizia was confronting. At the time she was killed, in October 2017, she was subject to over 40 separate Strategic Lawsuits Against Public Participation, also known as ‘SLAPPs’.

The proliferation of SLAPPs is posing an increasingly significant, but often hidden, challenge to journalists around the world in their role as society’s watchdog. SLAPPs are used by the powerful and wealthy in order to evade scrutiny – by intimidating journalists and activists into withholding or withdrawing information from public debate. They first emerged in the 1970s as corporate America’s response to growing environmental activism.

Rather than seeking justice, SLAPPs aim to exploit libel, data protection and other laws to swamp people with costly legal battles. The purpose is not to win a lawsuit – few cases ever reach a verdict – but to silence those speaking out in the public interest through self-censorship or financial ruin.

‘The process itself is the purpose,’ says Sarah Clarke of human rights organization Article 19.

Reputation over information

‘One of the great trends of the 21st century is the rise in oligarchic wealth and power and the corresponding decline in wealth and power of those investigating them,’ says Observer columnist Nick Cohen. He argues that a global increase in financial inequality explains why the use of SLAPPs has exploded in the past decade.

According to Forbes Magazine there are 2,755 billionaires in the world today compared to just 140 in 1987. This increase in extreme wealth has spurred the growth of a ‘reputation management’ industry that specializes in the legal intimidation of journalists and activists on behalf of the super-rich and powerful.

An escalation in populist and polarized politics has also encouraged the use of SLAPPs. It is easier to accuse journalists of spreading ‘fake news’ or to label activists as ‘eco-terrorists’ in a highly divided society. Politicians like Donald Trump even boast of suing journalists to curry favour with their supporters.

Britain has become the ‘SLAPP tourism’ capital of the world, with many vexatious cases against journalists and activists, based both in the UK and abroad, appearing before London’s courts. In fact, the country is the most frequent source of legal threats against journalists – almost more than the US and EU combined, according to the Foreign Policy Centre.

The rich and powerful are using ruinous lawsuits to target journalists and activists who hold them to account. Tina Burrett explores the threat

British journalist Catherine Belton faced multiple libel actions from four individual Russian oligarchs, as well as Kremlin oil giant Rosneft, over her acclaimed 2020 book Putin’s People which meticulously details the Russian president’s rise to power. In December 2021, to avoid extortionate damages and costs, Belton and her publisher HarperCollins were forced to settle a case brought by former Chelsea Football Club owner Roman Abramovich.

Peter Geoghegan, an Irish journalist who was SLAPPed over his 2020 book Democracy for Sale, argues there are three reasons why wealthy plaintiffs use British courts to harass journalists. First, legal costs in the UK are particularly high. As Guardian lawyer Gill Phillips explains: ‘Libel lawyers can charge up to £600 [around $810] an hour.’ The prospect of huge costs alone can force journalists and their employers to remove an offending story.

Second, Britain’s legal system moves very slowly, preventing journalists from investigating other stories while tied up with the courts, and accumulating further financial and psychological damage. Radio Free Sarawak founder Clare Rewcastle Brown, who was sued in the British courts over her investigation into the 1MDB corruption scandal in Malaysia, faced a two-year legal battle.

Finally, under British defamation law, the burden of proof falls on the defendant. In Kafkaesque fashion, it is not up to the plaintiff to prove that what the journalist said is false, rather journalists must prove their statement is true. Furthermore, as human rights lawyer Helena Kennedy explains, London is home to many boutique law firms that specialize in helping wealthy clients to pursue SLAPPs.

‘This ecosystem creates a monster-machine generating a high volume of threats,’ says Paul Radu, director of the Romania-based Organized Crime and Corruption Reporting Project. Britain’s ambiguous defamation laws also allow the corrupt and the criminal from across the world to launder money as payments to their London lawyers, while cleansing their reputations in British courts. ‘It’s a lucrative business,’ Radu concludes ruefully.

A global scourge

A 2019 survey by the Business and Human Rights Resource Centre found that globally human rights and environmental activists are the most common victims of these lawsuits and that mining and energy corporations are the most frequent petitioners. In 2021, the organization recorded 355 SLAPPs in total.

In India, corporations exposed for causing environmental damage are the foremost source of SLAPPs, while in Brazil evangelical churches frequently resort to them to silence their critics.

Writer Subir Ghosh laments that in India corporations don’t even need to go as far as issuing SLAPPs. ‘A few legal letters are enough to make journalists withdraw information,’ he says, ‘such is the climate of fear under the Modi government.’ The use of SLAPPs against journalists reporting on the strip-mining of sand from India’s rivers, as well as the murder of reporters exposing this illegal practice, have led to rampant self-censorship says Ghosh. His own book, Sue the Messenger, which reveals how abuse of the law is undermining free speech and democracy in India, received four SLAPPs. ‘Reporters won’t touch stories that might get them in trouble,’ he says.

Under Poland’s populist government, journalists are increasingly subject to SLAPPs from big players in business, politics or state television. Leading Polish newspaper Gazeta Wyborcza is facing over 50 of them. ‘The ruling party uses taxpayers’ money to pursue journalists,’ says Emilia Zakrzewska, a representative from Agora, the outfit that publishes Gazeta Wyborcza. ‘There are currently 25 defamation SLAPPs under Article 212 of the criminal code that could see defendants jailed for up to a year.’ Polish plaintiffs deliberately choose criminal over civil action to place maximum pressure on the free press. ‘Even if journalists win, there are usually health and emotional consequences,’ says Zakrzewska.

In 2020, Slovenian investigative news outlet Necenzurirano was hit with 39 SLAPPs. Three of its journalists were targeted with 13 lawsuits each, all filed by Rok Snežić, a tax expert and unofficial financial advisor to Prime Minister Janez Janša – himself known for intimidating reporters. The lawsuits target reporting on Snežić’s alleged illegal loan to Janša’s ruling SDS Party. Journalist Primoz Cirman says the SLAPPs against him and his colleagues are only one element of the harassment they are facing. ‘Our accusers are also trying to block Necenzurirano’s bank accounts where we might get some donations to help with our fight,’ he says.

Reasons to be hopeful

This may well be grim reading but there is a fightback underway. Already parts of the US and Canada have introduced legislation allowing judges to dismiss nuisance cases which would otherwise sap time and money from media organizations, activist groups and other targeted people. The European Centre for Press and Media Freedom (ECPMF) is mapping SLAPP cases across the globe and offering legal and financial support to journalists facing harassment lawsuits who may otherwise be forced to abandon the fight.

Greenpeace, who were SLAPPed with racketeering charges in the US by paper manufacturer Resolute Forest Products, are leading efforts to build an anti-SLAPP coalition among NGOs. ‘SLAPPs work by dividing and isolating,’ says Greenpeace UK legal advisor Charlie Holt. ‘We need a coalition to protect the protest.’ Those who bring SLAPPs try to divide by claiming ‘we’re only going after unprofessional journalists’, says Holt. According to ECPMF legal advisor Flutura Kusari, these jibes often hit the mark. ‘In Europe there is a stigma attached to being subject to a SLAPP,’ she says. ‘Journalists don’t want to speak up as it may spook their sources or suggest they are unprofessional.’

In 2021, Greenpeace, which had won its battle against Resolute, led 100 other NGOs in successfully lobbying the EU to propose an anti-SLAPP directive. Sadly, the UK has been slow on the uptake. In November 2021, Boris Johnson threatened to sue The New European magazine over an article exposing a cruel jibe the prime minister made about his wife. Downing Street quickly retracted the threat of legal action after a dozen other media outlets reposted the article, demonstrating that solidarity can deter SLAPP actions.

SLAPPs are not just a problem for activists and journalists. By denying us the ‘right to know’, they are a problem for us all. Malicious lawsuits against journalists weaken public trust in the professional media, creating fertile ground for disinformation. When the rich and powerful abuse laws designed to protect the poor and powerless, accountability and democracy suffer. Anti-SLAPP legislation is urgently needed to redress this imbalance in a legal system which is currently far too easy to misuse.