The “Misuse” of the judicial system to attack freedom of expression

UNESCO has released a new report on “The “misuse” of the judicial system to attack freedom of expression”. The report takes an in-depth look at the patterns and challenges surrounding the rise of abusive litigation, and makes a number of recommendations. To mark its release, we explore our own experience tackling legal threats to freedom of expression.

At Media Defence, we see these threats to journalists on a daily basis. In our work, we support over a hundred cases every year in 160 countries. A significant proportion of these cases can be categorised as abusive litigation: lawsuits initiated by authorities and powerful figures to silence their critics. While there is nothing new about restricting public interest reporting, the judicial system is increasingly being called upon to impose these restrictions.

Decriminalising defamation

Firstly, it should be emphasised that access to justice is essential to healthy democracies. Defamation laws are not inherently problematic, and can serve the legitimate purpose of safeguarding reputations against intentionally damaging false statements. However, defamation lawsuits are frequently misused to stifle dissent, and can have a serious chilling effect on journalism. It is therefore important to strike the right balance between safeguarding reputations and upholding freedom of expression.

Criminal charges, punitive fines and imprisonment are disproportionate, and can result in journalists self-censoring. For this reason, international human rights courts and UN bodies have repeatedly ruled against criminal sanctions for defamation. In Cumpana and Mazare v. Romania (2004), the European Court of Human Rights (ECtHR) established that in freedom of expression cases imprisonment was appropriate only exceptionally, such as in situations of incitement to violence or hate. Equally, the Inter-American Court of Human Rights (IACtHR) has consistently overturned criminal sanctions in defamation cases, such as in Herrera-Ulloa v. Costa Rica (2004) and Uson Ramírez v. Venezuela (2009).

In Africa there has been a steady trend towards decriminalising defamation, following Lohé Issa Konaté v. Burkina Faso (2014). With support from others, Media Defence represented Konaté before the African Court on Human and Peoples’ Rights (ACHPR). In a landmark ruling, the ACHPR awarded Konaté $70,000 in compensation for the year he spent imprisoned on criminal defamation charges.

In 2015, we also supported the Federation of African Journalists (FAJ) and others in their challenge against The Gambia. The challenge came before the Community Court of Justice of the Economic Community of West African States (ECOWAS Court), which issued a key judgment in 2018. It found that the Gambian authorities had violated the rights of the journalists through laws criminalising speech.

Despite the growing international consensus on this issue, the progress on decriminalisation has slowed. In its 2021 report, UNESCO recorded that at least 160 of its member states still had criminal defamation laws on the books. This is borne out by our caseload: as quoted in UNESCO’s study, between 2018 and 2021 we supported journalists in 85 defamation lawsuits, 40 of which were criminal cases.

Blasphemy, fake news and cybercrime laws

Defamation is not the only route to stifling critical reporting. Blasphemy and religious insult laws also remain on the statute books in around 40% of countries globally. Those found guilty of blasphemy could face anything from fines, to imprisonment and even the death penalty. The most restrictive laws imposed on freedom of expression in relation to religion tend to be in the Middle East and Asia and the Pacific.

Moreover, governments are regularly bringing in new legislation that threatens media freedom. Since 2016, at least 44 countries have adopted laws and regulations relating to speech that contain overly vague language or disproportionate punishments. Most recently, we have witnessed dozens of countries enacting vaguely worded “fake news” laws. Ostensibly to tackle misinformation and keep citizens safe during the COVID-19 pandemic, these laws can also be used to harass and silence critics. Since 11 September 2001, many countries have also introduced or updated terrorism, national security and cybercrime laws. As with fake news laws, the overly broad language in many of these laws provides a cover for authorities to crack down on dissent.

Where possible, we challenge ambiguous legislation that leaves itself open to abuse. This is not an easy or straightforward task. For instance, Nigeria’s section 24 of its Cybercrimes Act (2015) provides that those who send online messages that are “grossly offensive”, “of an indecent, obscene or menacing character”, or that the sender “knows to be false”, could face up to three years in prison. Despite the ECOWAS Court’s order in 2020 that Nigeria repeal Section 24, it remains in place. To compel Nigeria to comply with the order, a Judicial Review was filed against the Attorney General in 2021. The Federal High Court of Nigeria, however, found that the ECOWAS decision was not legally binding and struck out this Judicial Review. With our support, Nigerian lawyer Olumide Babaloa is making an appeal of the Federal High Court’s judgment, arguing that Section 24 lacks key definitions, thus allowing for arbitrary interpretation by state authorities.

SLAPPs

It is not only the authorities that abuse the judicial system to restrict media freedoms, but powerful individuals too. There is growing recognition of how rich and influential figures are able to exploit the courts to silence their critics.

Commonly referred to as ‘Strategic Lawsuits Against Public Participation’ (SLAPPs), these vexatious legal actions censor and intimidate critics. SLAPPs can be difficult to define, as they make use not only of defamation and libel laws, but of privacy, copyright and data protection laws too. What sets them apart is the scope of the claim, which could deter acts of public participation beyond the issues in dispute. SLAPPs overwhelm the defendant through protracted legal proceedings, excessive costs and the hanging threat of criminal sanctions or hefty fines. To fight their case, the defendant must redirect their time, energy and resources away from reporting to mount a defence. Independent and freelance journalists are particularly affected in the process. The stigma of being associated with such a lawsuit can result in fewer work opportunities for the journalist, and they may self-censor as a result. The stress, isolation and uncertainty can put the journalist in question under huge psychological strain. More broadly, such lawsuits are used to send a chilling message to other journalists.

We have already supported over 50 SLAPP cases in 2022 thus far. This includes a case before the Colombian Constitutional Court, involving the founders of the feminist news outlet Las Volcánicas.

In 2020, after extensive research, journalists Matilde de Los Milagros Londoño and Catalina Ruiz-Navarro published a report featuring eight testimonies from women alleging sexual abuse and harassment by a renowned and influential Colombian filmmaker. Days later, in response to the online report, the filmmaker filed a criminal defamation lawsuit. In a rather unusual development, the filmmaker also filed a constitutional challenge, or tutela, claiming the article violated his rights of honour, good name and presumption of innocence. Later, in a further attempt to quash the report, he filed a civil claim in 2021 against the two journalists, requesting US$900,000 in damages.

In May 2021, the court order in this tutela mandated the outlet withdraw their publication unless they could provide more information on the allegations. To comply with this judgment, Las Volcánicas carried out additional interviews and newsgathering on the eight allegations. The updated report, published a year later, contained more detailed accounts of the previously reported allegations, and a ninth allegation of sexual abuse. Los Milagros Londoño and Ruiz-Navarro are defending three different lawsuits related to a publication made in the public interest.

In April 2022, the European Commission adopted a package of measures to protect those engaged in public participation from SLAPPs. This is a welcome development but, even if implemented effectively, the proposed directive only covers SLAPPs in civil matters with cross-border implications. If we take as a sample the European SLAPPs that we have supported over the past two years, this directive would only limit or prevent around 35% of our European SLAPP cases. Journalists will still need our support to defend themselves against powerful actors attempting to silence their reporting.

Recommendations

In its report, UNESCO makes a number of recommendations. Namely, it urges states to decriminalise defamation and review or remove sweeping legislation that criminalises speech. It also suggests implementing measures to limit SLAPPs and preventing public bodies from filing defamation suits.

UNESCO also encourages organisations that provide legal support, like Media Defence, to continue to raise awareness of the support available. By pursuing strategic litigation, and bringing laws in line with international standards, we can drive concrete legal and policy change.

We can also ensure journalists are able to report, despite legal action, by facilitating their defence. Through our Emergency Defence Programme, we cover legal costs, as well as connecting journalists to a local lawyer if they do not have representation already. We work alongside their lawyer to provide additional legal support when needed, and, if necessary, drawing on an international network of pro-bono expert media and human rights lawyers to assist. This approach is highly effective, with 92% of the journalists we have supported since 2018 continuing to report on matters of public interest.

This International Anti-Corruption Day provides us with a reminder of the important role of journalists around the world. It is vital that we protect journalists from legal harassment, so that they can continue to expose corruption and hold power to account.

You can read the full UNESCO report here.

If you are a journalist or citizen journalist in need of support, please click here.