8 Jun 2020 | Statements
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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]
17 May 2020 | Statements
Index calls for the immediate release of Lina Attalah, the editor and co-founder of the Egyptian news website Mada Masr, one of the few independent news outlets in the country to offer an alternative narrative to government-controlled media.
Attalah was arrested outside Tora prison while attempting to interview the mother of Egyptian blogger and political activist Alaa Abd El Fattah, who had been arrested in September 2019 after writing a critical column in Mada Masr. He is currently on hunger strike protesting his pretrial detention conditions.
Rachael Jolley, editor-in-chief of Index on Censorship, said: “Lina was doing her job and reporting on a climate of crackdown and fear in Egypt right now, where news coverage happens under extreme pressure. We call on the international community not to ignore what is going on in Egypt.”
Mada Masr, which was shortlisted in the journalism category in Index’s 2016 Freedom of Expression Awards, was one of 21 websites blocked by the Egyptian authorities in 2017 for “supporting terrorism and extremism and spreading lies” in violation of the International Covenant on Civil and Political Rights.
Freedom of expression is coming under increasing attack in Egypt and media critical of the government of president Abdel Fattah el-Sisi face huge challenges in doing their important work.
14 May 2020 | Covid 19 and freedom of expression, News
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As we mark 50 days since we first started collating attacks on media freedom related to the coronavirus crisis, we’re horrified by the number of attacks we have mapped – over 150 in what is ultimately a short period of time.
We know that in times of crisis media attacks often increase – just look at what happened to journalists after the military coup in Egypt in 2013 and the failed coup against Recep Tayyip Erdogan in Turkey in 2016. The extent of the current attacks, in democratic as well as authoritarian countries, has been a shock.
Our network of readers, correspondents, Index staff and our partners at the Justice for Journalists Foundation have helped collect the more than 150 reports media attacks.
But these incidents are likely to be the very tip of the iceberg. When the world is in lockdown, finding out about abuses of power is harder than ever. Journalists are struggling to do their job even before harassment. How many more attacks are happening that we don’t yet know about? It’s a scary thought.
Rachael Jolley, editor-in-chief of Index on Censorship, said: “We are alarmed at the ferocity of some of the attacks on media freedom we are seeing being unveiled. In some states journalists are threatened with prison sentences for reporting on shortages of vital hospital equipment. The public need to know this kind of life-saving information, not have it kept from them. Our reporting is highlighting that governments around the world are tempted to use different tactics to stop the public knowing what they need to know.”
Index is alarmed that the attacks are not coming from the usual suspects. Yes, there have been plenty of incidents reported in Russia and the former Soviet Union, Turkey, Hungary and Brazil. At the same time there have been many incidents in countries you would not expect to see – Spain, New Zealand, Germany and the UK.
The most common incident we have recorded on the map are attacks on journalists – whether physical or verbal – and cases where reporters have been detained or arrested. There have been more than 30 attacks on journalists, with the source of many of these being the US President Donald Trump. He has a history of being combative with the press and decrying fake news even where the opposite is the case and the crisis has seen a ramped up attempt at excluding the media. During the crisis, he has refused to answer journalists’ questions, attacked the credentials of reporters and walked out from press conferences when he doesn’t like the direction they are taking.
We have also seen reporters and broadcasters detained and charged just for trying to tell the story of the crisis, including Dhaval Patel, editor of the online news portal Face of Nation in Gujarat, Mushtaq Ahmed in Bangladesh and award-winning investigative journalist Wan Noor Hayati Wan Alias in Malaysia.
Since we started the mapping project, we have highlighted other specific trends. Orna Herr has written about how coronavirus is providing pretext for Indian prime minister Narendra Modi to increase attacks on the press and Muslims. Jemimah Steinfeld wrote about how certain leaders are dodging questions while we have also looked at how freedom of information laws are being suspended or deadlines for information extended.
Although the map does not tell the whole story it does act as a record of these attacks. When this crisis is finally all over, it will allow us to ask questions about why these attacks happened and to make sure that any restrictions that have been introduced are reversed, giving us back our freedom.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_btn title=”Report an incident” shape=”round” color=”danger” link=”url:https%3A%2F%2Fforms.gle%2Fhptj5F6ZvxjcaGLa7|||” css=”.vc_custom_1589455005016{border-radius: 5px !important;}”][/vc_column][/vc_row]
4 May 2020 | India, News
Image by Raam Gottimukkala from Pixabay
A friend in the police department apologetically texted me with some “friendly” advice. “Don’t be extra active on social media over corona issues which may lead to panic and rumours. There may be legal issues over it,” he said.
He wouldn’t elaborate further, but it didn’t take much to understand. A freelance journalist was arrested in Andaman and Nicobar Islands for a tweet on a bizarre quarantine rule. At least 13 people from various walks of life have been arrested since 1 April in Manipur for Facebook posts. A doctor at a government hospital had been harassed by the police and questioned for 16 hours at a police station after he put up a Facebook post complaining about the lack of protection gear for doctors. A founder of an online publication was arrested in Tamil Nadu for reports on problems faced by government healthcare workers. In Chhattisgarh, a journalist was slapped with a notice threatening arrest for his report on the plight of women in lockdown.
The pandemic has given the government free rein. India is witnessing very high levels of suppression of free speech and media censorship across the country.
“Everything is censored,” said a Kolkata-based journalist, declining to be identified. “You cannot report on anything that is not confirmed by the government. Getting data on anything is an ordeal.”
In the name of curtailing rumours and fake news, there have been curbs on free speech and freedom of journalists to cover the pandemic, especially those with questions that make the government uncomfortable. “It’s as if the media is an opponent. It is as if asking questions of the government is a crime, or a politically motivated exercise,” said the journalist.
On 30 March, Scroll.in published a list of ten questions that health beat reporters in Delhi had for the central government but did not get any answers. These included: How did the Indian government arrive at the pricing of the Covid test in private labs, which is Rs 4,500 ($60), and among the highest in the world? Why has the drug controller not released the list of Covid-19 testing kits that have been granted import and manufacturing licences? What are the steps the government is taking to map the scale of Covid-19 outbreak in the community? What arrangements have been made to ensure patients living with life-threatening conditions like cancer, tuberculosis and HIV that require continuous support are not deprived of critical care?
While questions such as these remain unanswered, journalists covering the Covid crisis say they are witnessing unprecedented levels of censorship. Government interaction with the press is stressed. Prime Minister Modi, in keeping with his record, has not organised a single press conference on the issue. Harsha Vardhan, a health minister, has interacted infrequently with the press, while the daily press briefings are conducted by a senior bureaucrat in the health department, Lav Agarwal.
“In the ministry’s organisation structure,” writes Vidya Krishnan in Caravan magazine, “Agarwal comes after two secretaries, four special secretaries and four additional secretaries, and is one of the thirteen joint secretaries in the ministry of health.”
Even the press briefings are not for all journalists. Barring Doordarshan (DD), India’s public broadcaster, and news agency Asian News International and a few accredited journalists, others have been barred from attending the press briefings in the name of social distancing. “The directive on social distancing became an excuse to not have journalists in the room,” said Anoo Bhuyan, Delhi-based health reporter with Indiaspend, a data journalism-based news portal.
“Then we got a message one day saying other than ANI and DD no one needs to attend the press conference. They said we could send our questions through WhatsApp. However, there is no guarantee that your question will be picked to be answered by Mr Agarwal. It is like a lucky draw without any rationale and definitely does not give equal chances to all journalists. In the very short time allotted for questions, only two to four questions are picked up, some of which are repetitions.”
The Modi-led government even approached India’s Supreme Court to legalise censorship by seeking an order that would prevent the media to publish anything “without ascertaining the true factual position” from the government. The court did not go that far, only directing the media to “refer to and publish the official version about developments”.
“The order itself does not have teeth, but the fact that there is an order may freak out many,” said Bhuyan. “It gets diabolical in that Lav Agarwal makes it a point to sometimes refer to the order and ‘remind’ journalists to ‘exercise caution’ and ‘report responsibly’.”
“What’s happening in India is extremely disturbing,” Vidya Krishnan, a Goa-based health reporter with Caravan magazine, tweeted on April 1. There is a media gag in place, doctors have been threatened to not speak out against lack of PPE kits, and the health ministry says we have no local transmission (without scaling up testing). Genuinely struggling to understand how we can continue reporting in this Orwellian setting.”
Source: Ministry of Health and Family Welfare, data correct as at 30/4/2020
Meanwhile, Mamata Banerjee, chief minister of the Indian state of West Bengal, announced insurance cover for journalists covering Covid from the frontlines. It is a combination of medical and life cover worth 10 hundred thousand Indian rupees (£10,500). There’s one rider: journalists have to do “positive” stories. “People are depressed seeing negative news all the time,” she said. “Journalists should be involved with the government,” she added without leaving anything to doubt.
This came just two days after she threatened legal action against journalists if they report “unconfirmed” fatality figures. Banerjee, who has a record of booking journalists, academics and the general public for social media posts critical of her, faces allegations that she is supressing Covid-related data in the state. The state has a special committee to “audit” and “ascertain” Covid deaths.
Banerjee has asked journalists to “behave properly” or face legal action.
