Legislation On Track To Smack Abusive Lawsuits Against Journalists, Observers Wary

Michael Hedges May 2, 2022 - Follow on Twitter

For a certain set of lawyers, life is about filing lawsuits. Sometimes these are to set right claims and grievances, the right to litigation being well-established. The big league in legal practice, which includes mergers and acquisitions, is defamation suits. The intent is to harm, injure and abuse as well as, for the lawyers, collect money. These lawsuits have been running wild.

Last week the European Commission (EC) brought forward a legal mechanism to curtail abusive lawsuits against journalists and human rights workers. A Directive is in the works that would make painful bringing SLAPPs, strategic lawsuits against public participation, to harass or intimidate, said the EC statement (April 27). Before a SLAPP Directive becomes part of EC law, expected by the end of this year, both the European Parliament (EuroParl) and European Council must negotiate and pass a final draft. On approval, EU Member States would be required to implement measures into national law.

The EC proposal, outlined by EC VP for Values and Transparency Vera Jourová and Justice Commissioner Didier Reynders, provides procedural remedies like compensation for damages and swift dismissals for “manifestly unfounded lawsuits.” Those bringing such lawsuits could be required to prove justification and pay all court costs. The recommendation also asks Member States not to recognize SLAPP judgments coming from non-EU countries. Criminal cases and those with national jurisdiction are outside of the ECs legal competency.

All of this has long been in the works, the EC noting that murdered Malta investigative reporter Daphne Caruana Galizia had been served with more than 40 SLAPPs by the time she was blown up in a 2017 car bombing. “This is, in fact, Daphne’s Law,“ said Commissioner Jourova. “Finally, some sort of action is going to be taken,” offered the Malta Independent (April 30) in an editorial. “Several media houses and journalists in Malta have been threatened with SLAPP suits over the years, with threats of legal suits being filed in foreign jurisdictions where legal costs for fighting them being so high that they could financially damage local media houses. One would need to ensure that the penalties are high enough to prevent the ultra-rich from filing such abusive suits.”

Journalist and free press advocates favorably noted the ECs determination. The International Press Institute (IPI), part of the Coalition Against SLAPPs in Europe (CASE), spoke favorably about “the Commission’s approach in defining SLAPPs with cross-border implications, which takes into account how attempts to limit public participation resonate and impact public interest across borders, and welcome its recommendation that states ensure that safeguards be applied to all cases beyond the scope of minimum EU standards.” in a statement (April 27). “Any attempts to weaken the minimum standards proposed by the Commission must be fought back.” CASE has identified 570 SLAPP cases in Europe since 2012.

“This move by the European Commission to stop SLAPP lawsuits demonstrates important, decisive action,” said Committee to Protect Journalists (CPJ) EU representative Tom Gibson, in a statement (April 27). “However, the initiative needs the support of member states if journalists are going to reap the benefits of greater legal protection against these abusive lawsuits. We are not there yet.”

The proposed Directive is “a major step forward in the fight against the use of ‘gag suits’ to intimidate and silence journalists,” offered Reporters sans Frontieres (RSF) in a statement. “Such measures are essential so that journalists can continue to work, so that they can shed light on the activities of those in positions of economic or political power who resort to SLAPPs, and shed light on what they want to hide.” RSF noted that France billionaire Vincent Bolloré, principal owner of Canal+ and, soon, Lagardère, is “almost systematic in his use of SLAPPs against journalists who investigate and question his activities.”

The US state of New York passed an anti-SLAPP law 17 years ago. It has been amended several times, each adding more teeth. The New York Times (NYT) recently became the first to use it, noted Reuters (April 15), to recover legal fees and court costs from a defamation lawsuit, later dismissed, filed by US white nationalist Peter Brimelow. He had sued the NYT in 2020 for referring to him as a white nationalist “animated by race hatred.” A court tossed Mr. Brimelow’s lawsuit citing the NYT’s right to free speech.

In another twist on legal maneuvering involving defamation suits, Fox News, subsidiary of News Corporation and principally owned by the Murdoch family, filed a series of lawsuits against election technology provider Smartmatic using the New York anti-SLAPP laws. Smartmatic filed a defamation action against Fox News and individual reporters in February 2021 claiming damages of US$2.7 billion from broadcast coverage that “amounted to willing participation in a disinformation campaign that hurt Smartmatic's business prospects,” reported NPR (March 18). Courts have repeatedly denied Fox News’ attempts to have the Smartmatic lawsuit dismissed. Now Fox News lawyers have sued to recover legal fees and court costs.

"It is ironic that Fox (News) claims that Smartmatic's lawsuit is without basis after the Court found that the lawsuit had a substantial basis in law and fact,”said Smartmatic attorney J. Erik Connolly. "The decisions of courts across the country regarding these defamatory statements speak for themselves; and, the courts are saying something very different than Fox.” Yes, this one is all about conspiracy theories for which Fox News is infamous.

See also...

• Hot Topics - Defamation