The problem: gag lawsuits against public interest defenders
The EU must end gag lawsuits used to silence individuals and organisations that hold those in positions of power to account. Strategic Lawsuits Against Public Participation (SLAPP) are lawsuits brought forward by powerful actors (e.g. companies, public officials in their private capacity, high profile persons) to harass and silence those speaking out in the public interest. Typical victims are those with a watchdog role, for instance: journalists, activists, informal associations, academics, trade unions, media organisations and civil society organisations.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column width=”3/4″][vc_column_text]Recent examples of SLAPPs include PayPal suing SumOfUs for a peaceful protest outside PayPal’s German headquarters; co-owners of Malta’s Satabank suing blogger Manuel Delia for a blog post denouncing money laundering at Satabank; and Bollore Group suing Sherpa and ReAct in France to stop them from reporting human rights abuses in Cameroon. In Italy more than 6,000 or two-thirds of defamation lawsuits filed against journalists and media outlets annually are dismissed as meritless by a judge. When Maltese journalist Daphne Caruana Galizia was brutally killed, there were 47 SLAPPs pending against her.
(Index has recently published a comprehensive review of the laws being used to silence journalists – click on the report cover to the right to read it.)[/vc_column_text][/vc_column][vc_column width=”1/4″][vc_single_image image=”113782″ img_size=”full” onclick=”custom_link” img_link_target=”_blank” link=”https://www.indexoncensorship.org/campaigns/the-laws-being-used-to-silence-media/”][/vc_column][/vc_row][vc_row][vc_column][vc_column_text]SLAPPs are a threat to the EU legal order, and, in particular:
● A threat to democracy and fundamental rights. The EU is founded on the rule of law and respect for human rights. SLAPPs impair the right to freedom of expression, to public participation and to assembly of those who speak out in the public interest, and have a chilling effect on the exercise of these rights by the community at large.
● A threat to access to justice and judicial cooperation. Cross-border judicial cooperation relies on the principles of effective access to justice across the Union and mutual trust between legal systems. That trust must be based on the legally enforceable upholding of common values and minimum standards. To the extent that they distort and abuse the system of civil law remedies, SLAPPs undermine the mutual trust between EU legal systems: member states must be confident that rulings issued by other member states’ courts are not the result of abusive legal strategies and are adopted as the outcome of genuine proceedings.
● A threat to the enforcement of EU law, including in connection to the internal market and the protection of the EU budget. The effective enforcement of EU law, including the proper
functioning of the internal market, depends on the scrutiny of the behaviour of individual entities by the EU, member states and – crucially – informed individuals. Watchdogs, be it media or civil society actors, play a key enforcement role. Therefore, the absence of a system which safeguards public scrutiny is a threat to the enforcement of EU law. The same reasoning applies to the management of EU programmes and budget, which cannot be monitored through the sole vigilance of the European Commission.
● A threat to freedom of movement. The absence of rules to protect watchdogs from SLAPP has an impact on the exercise of the Treaty’s fundamental freedoms, since it affects the ability of media, civil society organisations and information services providers to confidently operate in jurisdictions where the risk of SLAPPs is higher, and discourages people from working for organisations where they can be the target of SLAPPs.
The solution: an EU set of anti-SLAPP measures
The EU can and must end SLAPPs by adopting the following complementary measures to protect all
those affected by SLAPPs:
1. An anti-SLAPP directive
An anti-SLAPP directive is needed to establish a Union-wide minimum standard of protection against SLAPPs, by introducing exemplary sanctions to be applied to claimants bringing abusive lawsuits, procedural safeguards for SLAPP victims, including special motions to contest the admissibility of certain claims and/or rules making the burden shifting to the plaintiff to demonstrate a reasonable probability of succeeding in such claims, as well as other types of preventive measures. The Whistle-Blower Directive sets an important precedent protecting those who report a breach of Union law in a work-related context. Now the EU must ensure a high standard of protection against gag lawsuits for everyone who speaks out – irrespective of the form and the context – in the public interest.
The legal basis for an anti-SLAPP directive is to be found in multiple provisions of the Treaty; for example, Article 114 TFEU on the proper functioning of the internal market, Article 81 TFEU on judicial cooperation and effective access to justice and Article 325 TFEU on combating fraudrelated to EU programmes and budgets.
2. The reform of Brussels I and Rome II Regulations
Brussels I Regulation (recast) contains rules which grant claimants the ability to choose where to make a claim. This must be amended to end forum shopping in defamation cases, which forces defendants to hire and pay for defence in countries whose legal systems are unknown to them and where they are not based. This is beyond the means of most and falls foul of the principles of fair trial and equality of arms.
Rome II Regulation does not regulate which national law will apply to a defamation case. This allows claimants to select the most favourable substantive law and therefore leads to a race to the bottom. Today, victims may be subject to the lowest standard of freedom of expression applicable to their case.
3. Support all victims of SLAPPs
Funds are needed to morally and financially support all victims of SLAPPs, especially with legal defence. Justice Programme funds should be used to train judges and practitioners, and a system to publicly name and shame the companies that engage in SLAPPs, for example in an EU register, should be created.
Finally, the EU must ensure that the scope of anti-SLAPP measures include everybody affected by SLAPPs, including journalists, activists, trade unionists, academics, digital security researchers, human rights defenders, media and civil society organisations, among others.
This paper was signed by the following 116 organisations Abalone Alliance Safe Energy Clearinghouse Access Info Europe Access Now ActionAid International Adéquations Amigas de la Tierra Amis de la Terre France ANTICOR ARTICLE 19 Association Justice and Environment, z.s. Bruno Manser Fonds Terre Solidaire (CCFD) CEE Bankwatch Network Centre for Free Expression Citizens Network Watchdog Poland Civil Liberties Union for Europe Civil Rights Defenders Civil Society Europe Clean Air Action Group (Hungary) Committee to Protect Journalists Common Weal Consumer Association the Quality of Life (EKPIZO) Corporate Europe Observatory Defend Democracy European Digital Rights (EDRi) Electronic Frontier Foundation Environmental Partnership Association ePaństwo Foundation Environmental Paper Network International (EPN) Estonian Forest Aid / Eesti Metsa Abiks ETC Group Eurocadres / Council of European Professional and Managerial Staff European Center for Not-for-Profit Law European Centre for Press and Media Freedom European Civic Forum European Coalition for Corporate Justice European Coordination Via Campesina European Environmental Bureau (EEB) European Federation of Journalists European Federation of Public Service Unions (EPSU) European Trade Union Confederation (ETUC) Fern Fitug Forest Initiatives and Communities Forum Ökologie & Papier FOUR PAWS International Free Press Unlimited Friends of the Earth Europe Friends of the Earth Nuclear Network Friends of the Siberian Forests Fundacja Otwarty Plan Fundacja Strefa Zieleni Global Justice Ecology Project GM Watch Gong Government Accountability Project Green Light Foundation Greenpeace EU Unit Homo Digitalis IFEX Index on Censorship Institute for Sustainable Development Institute of Water Policy International Corporate Accountability Roundtable (ICAR) International Press Institute (IPI) Iraqi Journalists Right Defence Association JEF Europe Jordens Vänner Journalismfund.eu Justice Pesticides Legal Human Academy Maison des Lanceurs d’Alerte Mighty Earth Milieudefensie / Friends of the Earth Netherlands MultiWatch NGO Neuer Weg NGO Shipbreaking Platform Nuclear Consulting Group Ending Gag Lawsuits in Europe – Protecting Democracy and Fundamental Rights 4 Nuclear Transparency Watch OGM dangers On ne se taira pas (We will not remain silent) Osservatorio Balcani e Caucaso Transeuropa PEN International Polish Ecological Club Mazovian Branch Polish Ecological Club Pomeranian Branch Polish Institute for Human Rights and Business Protection International RECLAIM Reporters Without Borders Rettet den Regenwald e.V. Salva la Selva Sciences Citoyennes Sherpa Society for Threatened Peoples Switzerland SOLIDAR SOMO Stowarzyszenie Ekologiczno-Kulturalne Wspólna Ziemia / Common Earth SumOfUs The Daphne Caruana Galizia Foundation The Ethicos Group The Good Lobby The Signals Network Transnational Institute Transparency International EU Umweltinstitut München e.V. Vouliwatch Vrijschrift vzw Climaxi Chceme zdravú krajinu / We want a healthy country WeMove Europe Whistleblower Network Germany Whistleblowing International Network (WIN) WildLeaks / Earth League International Women Engage for a Common Future (WECF) XNet Zielone Wiadomości[/vc_column_text][/vc_column][/vc_row]
[vc_row][vc_column][vc_single_image image=”112436″ img_size=”full”][/vc_column][/vc_row][vc_row][vc_column][vc_column_text]Journalists are at the frontline of protecting freedom of speech around the world and we recognise these annually in Index on Censorship’s 2020 Freedom of Expression Awards.
Four individuals and media outlets have been shortlisted in the journalism category in the awards, which will be presented at The May Fair Hotel in London on 30 April. Journalism is one of the four categories that will be recognised at the awards, alongside campaigning, digital activism and the arts.
Meet this year’s nominees.
Hong Kong Free Press was founded in 2015 in the aftermath of the Umbrella Revolution, with the goal of becoming the most independent and credible English-language news source in the region. Since then it has published thousands of articles, many of them on the subject of censorship.
In 2018, HKFP worked with NGOs to create Free Expression Week, which provided space for controversial artists to exhibit their work. Badiucao, an artist critical of Xi Jinping and the Communist Party of China, was scheduled to display some of his work at the event but was threatened by the Chinese government, forcing him to retract his work, a conflict documented in the film, China’s Artful Dissident.
The organisation’s journalists and employees have been injured during recent protests, have faced arrest and even received death threats. Despite being blocked in mainland China, they’ve gained international acclaim.
Marco Ruiz Silverais a journalist and head of the National Press Workers’ Union in Venezuela, working to protect journalists and promote media freedom. Ruiz is a founding member of the National Commission for the Protection of Journalists and the Alliance for Freedom of Expression in Venezuela. In 2009 he was one of the 12 journalists attacked and injured in Caracas by pro-government supporters.
Venezuela ranked 148th out of 180 countries in RSF’s World Press Freedom Index 2019. In 2017, a Constituent National Assembly was elected to draft a new constitution, suspending the existing one which included commitments to protect freedom of expression.
For journalists in the country, especially those without access to a lawyer, Ruiz is the first port of call, and has helped to secure the release of dozens of individuals.
Poland’s OKO is an investigative journalism and fact-checking portal. It was originally set up in 2016 by the publishers of Polish liberal newspapers Gazeta Wyborcza and Polityka but is today supported by donations from thousands of its readers.
The award-winning team of writers and editors investigate and evaluate statements made by politicians, monitor public spending, and fight for access to public information. Their work also supports grassroots activism, crucial in an environment sliding further and further into authoritarianism and censorship.
SOS Médias Burundi is a 24/7 news media channel operating in Burundi. It was established in 2015 after an attempted coup resulted in the closure of independent media outlets in the country. The organisation says that nearly 80% of the country’s journalists have fled since then; many of those that remained now work with SOS Médias Burundi becoming “the voice of the voiceless”.
Their clandestine operations have allowed them to become one of the only reputable and functioning news sources in the country. Reporting is limited to social media but this hasn’t stopped SOS from reaching hundreds of thousands of people daily.
The winner of the 2020 journalism award will be chosen by a panel of judges which includes award-winning Guardian journalist Amelia Gentleman, author of The Windrush Betrayal.[/vc_column_text][/vc_column][/vc_row]
[vc_row][vc_column][vc_single_image image=”112380″ img_size=”large”][/vc_column][/vc_row][vc_row][vc_column][vc_column_text]Hip-hop, satirical YouTube videos, a youth arts festival and rap are some of the ways in which art is being used today to protest against restrictions on freedom of expression.
Four individuals and organisations have been shortlisted in the Arts category for Index on Censorship’s 2020 Freedom of Expression Awards, which will be held at the May Fair Hotel in London on 30 April. The Arts is one of the four categories that will be recognised at the awards, alongside Campaigning, Digital Activism and Journalism.
Cameroonian rapper and pro-democracy activist Gaston Serval Abe, known as Général Valsero, has been using hip-hop to criticise government corruption in the country and to call for more transparency, and encourage civil engagement.
His music has seen him gain international recognition but he was banned from performing and radio stations rarely play his material. Despite being arrested and detained in 2019, Valsero remains courageous in his mission for justice and equality. Valsero was released last October after Cameroonian President Paul Biya ordered the discontinuance of proceedings against him and other political opponents.
Until its dissolution in April 2019, Casablanca-based NGO Racines worked to promote Moroccan culture and protect free speech, addressing taboo subjects such as politics, religion and sex.
The organisation, co-founded in 2010 by Dounia Benslimane and Aadel Essaadani, was forced to close after its offices were used to host an episode of the satirical YouTube series 1 Dîner 2 Cons (One Dinner, Two Fools). Racines itself had not organised the filming of the show nor had it posted the resultant clip, which included criticism of Morocco’s King Mohammed VI; it was viewed more than half a million times.
The Casablanca civil court ordered the closure of the NGO in December 2019 expressing “political views were far removed from the purposes for which the association was created”.
The organisation took the case to the Supreme Court but, in April 2019, the appeal was rejected and the dissolution of the organisation confirmed.
Rap Against Dictatorship is a Thai rap group which has produced anti-military rap songs criticising the Thai government.
The group released their hit song Prathet Ku Mee (What My Country’s Got) on 14 October 2018 “to mark the 45th anniversary of the 1973 popular uprising against a coup-installed prime minister in which 77 people died”, according to the Bangkok Post.
The song’s lyrics confront corruption, nepotism, the lack of accountability and transparency, poor healthcare, suppression of freedom of speech and the privileges afforded to the rich while the poor suffer.
Yulia Tsvetkova is a Russian artist and activist promoting women’s well-being and LGBTQ awareness. Her work has brought about positive change in discussions towards body positivity and gender stereotypes in Russia. However, this acclaim has made her a target.
In 2018 she began a campaign promoting body positivity which resulted in her being named a suspect in a criminal pornography distribution case. Tsvetkova, currently under house arrest, could face up to six years in prison if convicted.
In March 2019, her youth arts festival was cancelled after officials accused Tsvetkova of illegally trying to hold a gay pride event under the guise of a youth theatre festival.
In 2019, the winner of the Arts award was Kurdish painter and journalist Zehra Doğan.
Doğan had been arrested after painting the destruction in the town of Nusaybin in Turkey’s Kurdish region and sharing it on social media. She did this after realising that reports from the region were being ignored by mainstream media,
Speaking at her trial, a judge told Doğan about one of her works of art that “This picture has crossed the line between art and criticism.”
While in prison Doğan was denied access to materials for her work but made dyes made from crushed fruit and herbs, even blood, and used newspapers and milk cartons as canvases.
During her imprisonment she refused to be silenced and continued to produce journalism and art. She collected and wrote stories about female political prisoners, reported on human rights abuses in prison.
Doğan was released on 24 February 2019.
Accepting the word at the 2019 Freedom of Expression Awards after her release, Doğan said, “The limits of art, which the artistic world has not been able to agree upon for centuries, have apparently been figured out by the decision of a Turkish court.”
“It is not only art that has had boundaries drawn around it in Turkey: the things that can be said between friends, the topics you can write about, and the concepts you can debate at school with your students have all been limited by the authorities.”
The winner of the 2020 Arts award will be chosen by a panel of judges which includes artist Molly Crabapple, award-winning Guardian journalist Amelia Gentleman and Cindy Gallop, founder of social sex video platform MakeLoveNotPorn.[/vc_column_text][/vc_column][/vc_row]
Winner of the 2019 Index on Censorship Freedom of Expression Journalism Award, the Berlin-based Cameroonian journalist Mimi Mefo was one of less than a handful of reporters working without fear or favour in Cameroon’s climate of repression and self-censorship. An award-winning broadcast journalist at private media house Equinoxe TV and Radio, Mefo was arrested in November 2018 after she published reports that the military was behind the death of an American missionary in the country. Mefo reports on the escalating violence in the country’s western regions, a conflict that has become known as the “Anglophone Crisis” and is a leading voice in exposing the harassment of other Cameroonian journalists, calling publicly for the release of those jailed.
Mefo now works for Deutsche Welle. In October 2019, she was denied a visa to enter Australia where she was due to visit a press freedom conference.
We caught up with Mefo to find out what she has been working on since winning the award in April and how being part of the Index on Censorship Freedom of Expression Awards Fellowship has helped with this work.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_basic_grid post_type=”post” max_items=”4″ element_width=”6″ grid_id=”vc_gid:1571926428871-f3c44e41-b5e4-10″ taxonomies=”9015″][/vc_column][/vc_row]
