Abstract
“ THE TWO TIMES that me and my family left our home after my mother’s death were, first, to identify my mother’s remains in the morgue and, second, to go to a court hearing of the libel case brought by Chris Cardona against my mother,” Andrew Caruana Galizia told a virtual audience at an event co-hosted by Index on Censorship in March.
“She was facing potential damages of millions of euros. After her death we found out she had been sued for $40 million in Arizona. If she hadn’t been assassinated, the sad reality is she would have been completely crushed financially.”
Matthew Caruana Galizia, son of Daphne, and Rose Vella, Daphne’s mother, attend a vigil in Malta’s capital of Valletta, 2018
CREDIT: DARRIN ZAMMIT LUPI/Reuters/PA Images
The 47 lawsuits that were pending against Maltese journalist Daphne Caruana Galizia at the time of her assassination constituted a vicious legal campaign aimed at depriving her of the time, money and energy she needed to continue exposing corruption at the heart of Malta’s political establishment. These lawsuits were not filed in pursuit of judicial redress but to isolate, intimidate and ultimately stop her from publishing public interest investigations that were damaging to the interests of some of Malta’s wealthiest and most powerful people. These kinds of lawsuits are known as strategic lawsuits against public participation (Slapps).
“Short of a gun to the head,” one New York judge said of Slapps, “a greater threat to the First Amendment can scarcely be imagined.” But as evidenced by Caruana Galizia’s experience, the legal phenomenon is not confined to the USA, where the term originated in the 1980s. “Slapps have only relatively recently entered the English lexicon,” explained Gill Phillips, director of editorial legal services at The Guardian, in a recent analysis of lawsuits. This is true not only of England but of Europe, where the acronym is now beginning to be used. “That is not to say that such lawsuits have not existed in the past, but that there has been a slowness in attributing the Slapp label to them.”
Addressing the lack of awareness of Slapps in Europe has been one of the key objectives of the Coalition Against Slapps in Europe (Case), which is made up of nearly 30 civil society organisations, including Index. Members of the coalition have been bringing cases to light in a bid to convince the European Commission – which is responsible for proposing new EU laws and policies – of the need to take action. Several Slapps uncovered and documented by Index have been among those brought to the commission’s attention, including two ongoing cases outlined in Index’s latest report, Slapped Down. The commission is now considering potential measures aimed at preventing Slapps.
“You could not have seen such activity in the previous commission, as the problem was not so visible and so urgent,” said EU Commissioner Vera Jourova, who spoke alongside Andrew Caruana Galizia at the event in March. “What you are doing in the coalition is extremely useful to us. We will use your website as one of the tools of our work,” she said, referring to the Slapp website that was launched by Case (the-case.eu) at the event. The website will serve as a repository for Slapp-related resources and information, including Index’s reports, which will be useful to policymakers and those who may be facing Slapp threats or actions.
“You feel pretty alone when you get sued,” Sara Farolfi, one of the journalists featured in Slapped Down, told Index last year. “There are not many people that understand why you – as a journalist – are undertaking that risk.” She and her colleague, Stelios Orphanides, are being sued in Cyprus for up to €2 million by five Cypriot lawyers for a corruption investigation they published in 2018. “For them to file a lawsuit against two journalists, it just costs nothing. It just costs nothing. There are no downsides. They just need to do what they do every day. They don’t need to allocate any special resources to it. So there is this asymmetry – disproportion of forces.”
Referring to the disparity of power and resources between claimant and defendant, Jourová said: “I always see it as a fight between David and Goliath.” This imbalance is a hallmark of Slapps. Claimants will often exacerbate this, filing exaggerated claims that could never be recouped from the defendants. This is done to convince the target that they will lose everything if they don’t succumb. Small investigative media outlets and freelance journalists are disproportionately affected, but individual journalists who work for larger organisations increasingly face individual lawsuits.
Anna Pihl and Mihkel Kärmas, who are also featured in Index’s report, work as investigative journalists with Estonia Public Broadcasting (ERR), but they were sued individually for “up to €1 billion” by a Finnish businessman for an investigation that was broadcast and published online by ERR in 2018. “[Our employer] said that they will protect us and that we don’t need to be personally responsible, whatever happens,” Pihl told Index last year.
But the claimant nonetheless tried to force the journalists to pay for their own legal fees by preventing their employer from covering the costs. “[The claimants’ lawyers] sent a letter to the parliament’s culture commission, the finance ministry, the Estonian broadcasting’s governing body and the state audit office asking whether they regard it appropriate use of public funds if the public broadcaster pays for our individual attorneys.”
The claimants didn’t succeed in making the journalists fund their legal defence, but what if they had done so? Pihl said she would have been afraid to publish further investigations about wealthy businesspeople. “That shouldn’t be the case for a journalist,” she said. Their case is ongoing.
“We all know that corruption scandals, political hypocrisy, fraud and other crimes see the light of day because journalists took risks and worked hard with their sources and with whistleblowers,” Jourová said. “That’s why there can be no healthy democracy without free, independent and pluralistic media. But media and journalists need to be protected so they can fulfil their crucial function.”
That’s why the commissioner has committed to proposing measures aimed at protecting Europe’s journalists from Slapps later this year. Jourová would not be drawn on whether such an initiative would take the form of a directive, a regulation or a non-legislative measure but she said she “would prefer legally binding legislation”.
A legally binding initiative would send a strong message of support to Europe’s media which, according to Andrew Caruana Galizia, is desperately needed. “We need to find a way of not only supporting people who are being Slapped [but] even rewarding them for speaking out,” he said. “Whistle-blowers, activists [and] journalists pay an enormous private cost for defending the public interest... My mother could have said, ‘OK, this is a list of people I’m not going to write about because they are too dangerous or too wealthy’, but she didn’t.”
How can we protect our democracy, our rule of law, our human rights if we cannot hold the powerful to account? We can’t. Without the work of committed journalists, tyranny will prevail.)