Media Defence has submitted a third party intervention at the European Court of Human Rights (ECtHR) in the case of Malkiewicz and others v UK. The case relates to a defamation action brought against the applicants over an article published in a Polish language newspaper based in London. The proceedings lasted around six years, and went all the way to the Supreme Court before being remitted back to the High Court for a full retrial. When the matter was finally settled, the first and second applicants were left facing a costs bill of almost £600,000.
Excessively high costs in defamation and privacy claims in England and Wales have been directly linked to the increase in SLAPP (strategic litigation against public participation) cases brought against journalists in that jurisdiction. The prospect of being sued in the UK has a significant impact on a journalist ’s decision whether to defend a claim that should be fought, may pressure them to settle otherwise valid claims at an early stage, and can represent a deterrent to publishing material that is in the public interest. In response to the UK government’s March 2022 ‘Call for Evidence’ on SLAPPs, media organisations and NGOs identified the key issue affecting their ability to publish public interest stories as the risk of being sued and incurring exceptionally high legal costs.
Media Defence’s intervention is structured as follows – (i) shows that the UK is the most expensive jurisdiction in which to be sued by providing examples of legal costs for defending defamation and privacy cases across jurisdictions in Europe; (ii) discusses the adverse impact that the UK costs regime has on small publishers and individual journalists reporting on matters of public interest; and (iii) submits that Article 10 requires the costs burden imposed in defamation and privacy proceedings to be proportionate to a journalist’s means and the outcome of the proceedings.
The intervention can be found here.
The ECtHR’s Statement of Facts can be found here.
Thanks to Steven Finizio and Rina See of Wilmer Hale for their pro bono assistance with drafting the submissions. Thanks also to:
- Konrad Siemaszko, Lawyer, Helsinki Foundation for Human Rights, Poland
- Andrea Di Pietro, Lawyer, Studio Legale, Italy
- Gill Phillips, Director of Editorial Legal Services at Guardian News & Media
- Charlie Holt, Legal Counsel, Campaigns and Action, Greenpeace
- Nik Williams, Index on Censorship, and
- Emese Pásztor, Director, Political Freedoms Project, Hungarian Civil Liberties Union
for their assistance and advice.
For further information please contact Media Defence Legal Director Pádraig Hughes at padraig.hughes@mediadefence.org
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14 Years After The Diappearance Of Journalist Prageeth Ekneligoda, His Family Continue The Fight For Answers
On 24 January 2010, just two days before a crucial presidential election in Sri Lanka, journalist Prageeth Ekneligoda disappeared. Since then, his wife, Sandya Ekneligoda, has tirelessly fought for a thorough investigation and for those responsible to be brought to justice. Yet, to date, no effective investigation has been carried out and no perpetrators have been held accountable. For 14 years, Sandya and her two sons have lived in uncertainty, hoping for Prageeth’s return with no resolution in sight. Throughout this prolonged ordeal, Sandya has faced persistent intimidation, threats and harassment for her efforts.
Prageeth, a well-known critic of the government, was last seen in the suburbs of Colombo, Sri Lanka’s capital. As a cartoonist and columnist for the news website Lanka e News, he used his platform to expose corruption and speak out against abuses of power. His disappearance happened during a period of when widespread violence against journalists was recorded. From 2005 to 2015, dozens of journalists were murdered, assaulted, or disappeared, often in connection with their coverage of Sri Lanka’s 26-year civil war.
Initial Obstacles and Legal Efforts
Soon after Prageeth’s disappearance, Sandya encountered resistance from the authorities. In February 2010, after the police refused to register her missing person’s report, Sandya took legal action by filing a habeas corpus petition before the Sri Lankan Court of Appeal. Her petition requested that the authorities produce her husband in court. In response, the Court of Appeal directed a lower court, the Homagama Magistrate Court, to investigate the matter and report back.
Over the next few years, the Colombo Crime Division carried out a slow-moving inquiry that yielded no results. Meanwhile, government officials made baseless claims in 2011 and 2013, alleging that Prageeth was living abroad. These assertions were later discredited, and no substantial evidence was ever produced to support them.
Breakthroughs and Setbacks in the Investigation
In 2015, after a political shift ousted the Mahinda Rajapaksa administration, the investigation into Prageeth’s disappearance was revitalised and transferred to the Gang and Robberies Unit of the Criminal Investigations Department (CID). Witnesses came forward with testimonies indicating that Prageeth had been seen in an army camp after his abduction. The CID investigation found that a military intelligence unit was responsible for Prageeth’s disappearance and likely death and reported that the military failed to provide the necessary information to conduct a comprehensive investigation.
In November 2019, after more than 300 hearings, the Attorney General indicted nine military intelligence officers before the Colombo High Court on several charges related to Prageeth’s disappearance.
Political Interference and Continued Struggle
Despite this apparent progress, the path to justice has been repeatedly obstructed by political interference. Only days after the first hearing in the criminal case before Colombo High Court was held, Gotabaya Rajapaksa, the former President’s brother and also former defence secretary, was elected president. Under Gotabaya’s administration, a Commission of Inquiry into Political Victimisation was established. Human Rights Watch criticised the commission, suggesting it was aimed at derailing investigations into the president’s relatives and allies.
All nine accused military intelligence officers filed complaints with the Commission, which ultimately recommended their acquittal of all charges, further delaying the case and denying justice to Prageeth’s family.
The trial remains ongoing despite many challenges, from retracted witness statements, and repeated delays in hearings to changes in judges. Additionally, the CID officer who has led the investigation into Prageeth’s disappearance has reportedly received death threats and fled the country.
A widespread issue
Prageeth’s disappearance is not an isolated event, but emblematic of a broader pattern of enforced disappearances that has affected Sri Lanka for decades. The country ranks among the highest in the world for enforced disappearances, with estimates suggesting that between 60,000 and 100,000 people have vanished since the late 1980s. These disappearances have been used as a tool to instil fear, suppress dissent, and maintain control.
Despite criminalising enforced disappearances in 2018, the Sri Lankan government’s efforts to aid affected families and uncover the truth have been criticised for their inconsistency and inefficacy.
The anguish of enforced disappearance extends far beyond the immediate act of abduction. For families like the Ekneligodas, the emotional toll is profound, leaving them in a state of constant uncertainty. Additionally, while men are most often the victims of enforced disappearances, it is frequently women who lead the search for truth after a loved one disappears. According to Amnesty International, women often face additional risks of persecution and violence while fighting for answers, as well as economic hardship due to the loss of their families’ primary earners.
The stories of individuals like Sandya and Prageeth highlight the urgent need for accountability and transparency. Addressing these abuses is essential to protecting human rights, including freedom of expression, and ensuring that those who seek justice are not silenced.
We recognise the strength and resilience of families who continue to search for their loved ones. Their courage is a powerful reminder to stand with them and to ensure their voices are heard and their demands for justice are met.
Media Defence is proud to support Sandya Ekneligoda’s legal efforts.