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A Gathering Storm the Laws Being Used to Silence the Media

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A Gathering Storm the Laws Being Used to Silence the Media A gathering storm The laws being used to silence the media A review of how laws are being used in Europe to bring actions against journalists It’s crippling,” explained Stefan systems that are being abused in favour of Introduction ........................................... 2 Luxembourg ......................................... 12 Candea, a journalist and co- the powerful, a worrying trend that we are Austria ................................................... 4 Malta ................................................... 13 “founder of the Romanian Centre seeing across the continent. The report is Belgium .................................................. 4 Netherlands .......................................... 13 for Investigative Journalism, when asked intended as a foundation for forthcoming Bulgaria .................................................. 5 Norway ................................................ 14 about the centre’s experience of being sued research. Croatia ................................................... 5 Poland .................................................. 14 for its work. “It’s a major crippling of the Gill Phillips, director of editorial legal Cyprus ................................................... 6 Portugal ............................................... 15 workflow and of resources.” services at Guardian News and Media, Czech Republic ...................................... 6 Romania .............................................. 16 Across Europe, laws are being used said: “Against the background of the Denmark ................................................ 7 Slovakia ............................................... 16 by powerful and wealthy individuals in growing trend in Europe of threats to Estonia ................................................... 7 Slovenia ................................................ 17 the hope of intimidating and silencing reporting by using litigation as a means Finland ................................................... 8 Spain .................................................... 17 journalists who are disclosing inconvenient of inhibiting, intimidating and silencing France .................................................... 8 Sweden ................................................. 18 truths that are in the public interest. journalists and others working in the Germany ................................................ 9 United Kingdom ................................... 19 These legal threats and actions are public interest, this timely report provides Greece .................................................... 9 Annexes ............................................... 20 crippling not only for the media but succinct and helpful jurisdiction-by- Hungary ............................................... 10 Further reading .................................... 20 for our democracies. Instead of being jurisdiction guidance into the main legal Ireland .................................................. 10 Glossary ............................................... 20 empowered to hold power to account, as danger areas for journalists and others.” Italy ...................................................... 11 Acknowledgements .............................. 20 is fundamental to all democratic societies, The law is an essential component Latvia ................................................... 11 Photo credits ........................................ 21 journalists face extortionate claims for of understanding the extent to which Lithuania .............................................. 12 Support ................................................ 21 damages, criminal convictions and, in journalists are vulnerable to legal threats some cases, prison sentences in the course and actions. But culture, which shapes the of carrying out their work. law but is also separate from it, should “For me it was a shock, maybe because also be taken into account. Although it it was the first time I was dealing with the is more difficult to analyse, it determines penal code,” responded Polish investigative the extent to which society sees the media journalist Karolina Baca-Pogorzelska when as essential to democracy, and the extent asked about her experience of facing a of people’s readiness to resort to law to criminal lawsuit. “I didn’t do anything resolve disputes. wrong [but] at trial, I passed prisoners in “A lot of public officials don’t handcuffs in the corridors. It broke me understand the media as a watchdog. completely.” They still have this old communist kind In undertaking research into the of definition of the media. They think scope and scale of vexatious lawsuits the media should be reporting what the – or strategic lawsuits against public government does for the nation,” said participation (Slapps) – against journalists Beata Balogová, editor-in-chief of the and media outlets in Europe, Index hopes newspaper SME, as she explained the to help address the current dearth of impact of culture on the media in Slovakia. information around the phenomenon. The “Very often they just use a lawsuit as purpose of this first report – which looks a way of scaring journalists or trying to at EU states, the UK and Norway – is to discourage them from pursuing some of provide a concise snapshot of the legal the reports.” This report was written by Jessica Ní Mhainín, Index on Censorship’s Senior Policy Research and Advocacy Officer and edited and designed by Adam Aiken and Mark Frary. 2 INDEXONCENSORSHIP.ORG INDEXONCENSORSHIP.ORG 3 ccording to Georg Eckelsberger law to a public interest defence. In 2019, hile lawsuits are not the only the Radio and Television Act, the media of the investigative media outlet the civil code was used to sue Kyrgyzstani tool used to intimidate and will not be liable for information that has ADossier, letters threatening legal news outlet 24.kg in what was labelled by Wdiscredit journalists in Bulgaria, been received through official channels, action are often received by journalists in Article 19’s Barbora Bukovska as “a clear they remain a serious threat to investigative for quoting official documents, or for Austria. case of so-called libel tourism”. journalism, which is already struggling in accurately reproducing public statements. Defamation, which is a criminal offence, Concerns have also been raised over the the country. At least one effort has been made to is most often used. In the criminal code, it is extent to which public interest is taken Criminal defamation is often used to vexatiously sue a journalist by claiming that defined as asserting or disseminating a fact into consideration in other civil law cases bring legal actions against the media, constitutional rights, specifically the right that may defame or negatively affect public against the media. In 2015, Dossier was including against individual journalists. to dignity and reputation, was violated. opinion of another person. It is punishable ordered to pay nearly €2,000 to a plaintiff Insult and slander remain criminal offences, However, this was rejected by the court. by a fine or one year in prison, although the after being convicted of trespassing during punishable by fines but not imprisonment. Anyone affected by radio or television latter has not been used against journalists. an investigation, despite the findings of the Concerns have been raised around the broadcasting has a right to respond by The civil code and the media law also investigation being uncontested. ability of the courts to protect journalists making a request to do so in writing within provide for significant damages to be Anyone who has been the subject of an from vexatious criminal charges, especially seven days from the date of the broadcast. awarded for loss of honour. The civil incorrect statement in the press has the right following the conviction of Rossen Bossev The response can be neither edited nor code is particularly open to abuse as the to have a reply published, though the media on defamation charges last year. shortened and should be published in the possible damages are uncapped and it does has the right to refuse to publish a reply if Compensation may be sought under next episode or within 24 hours of receipt. not provide the same weight as the media the information was demonstrably true. the Obligations and Contracts Act, which The Ethical Code of the Bulgarian Media allows for unlimited non-pecuniary provides for a right of reply in printed damages to be awarded. The burden of media, but not all print outlets have signed proof is on the defendant. According to the code. lthough defamation is a criminal or non-pecuniary damages that may be offence, punishable with a fine or awarded, but damages for civil defamation Aprison sentence, journalists are usually range between €1,000 and €10,000. never brought to court on such charges. Concerns have been raised about ccording to a survey by the Croatian Act. In a case against a journalist under This is mostly due to the fact that criminal Belgian courts’ propensity to grant pre- Journalists Association, there the Obligations Act, the plaintiff has to press offences can be heard only by jury- publication injunctions at the request of Aare currently at least 46 criminal prove that the defendant intentionally based tribunals, which are costly and time- private companies that claim their rights lawsuits and 859 civil lawsuits filed against caused the damage, but the burden of proof consuming. According to a 2017 report by have been violated. In 2015, a court
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