JOURNAL OF INTERNATIONAL MEDIA & ENTERTAINMENT LAW PUBLISHED BY THE DONALD E. BIEDERMAN ENTERTAINMENT AND MEDIA LAW INSTITUTE OF SOUTHWESTERN LAW SCHOOL IN ASSOCIATION WITH THE AMERICAN BAR ASSOCIATION FORUMS ON COMMUNICATIONS LAW AND THE ENTERTAINMENT AND SPORTS INDUSTRIES Volume 9, Number 1 2020-2021 SYMPOSIUM FAKE NEWS AND “WEAPONIZED DEFAMATION”: GLOBAL PERSPECTIVES EDITOR’S NOTE ARTICLES RICO As a Case-Study in Weaponizing Defamation and the International Response to Corporate Censorship Charlie Holt & Daniel Simons The Defamation of Foreign State Leaders in Times of Globalized Media and Growing Nationalism Alexander Heinze Defamation Law in Russia in the Context of the Council of Europe (COE) Standards on Modern Freedom Elena Sherstoboeva Rethinking Non-Pecuniary Remedies for Defamation: The Case for Court-Ordered Apologies Wannes Vandenbussche JOURNAL OF INTERNATIONAL MEDIA & ENTERTAINMENT LAW VOL. 9, NO. 1 ■ 2020–2021 JOURNAL OF INTERNATIONAL MEDIA & ENTERTAINMENT LAW Volume 9 Number 1 2020–2021 PUBLISHED BY THE DONALD E. BIEDERMAN ENTERTAINMENT AND MEDIA LAW INSTITUTE OF SOUTHWESTERN LAW SCHOOL IN ASSOCIATION WITH THE AMERICAN BAR ASSOCIATION FORUMS ON COMMUNICATIONS LAW AND THE ENTERTAINMENT AND SPORTS INDUSTRIES Mission Statement: The Journal of International Media & Entertainment Law is a semi- annual publication of the Donald E. Biederman Entertainment and Media Law Institute of Southwestern Law School in association with the American Bar Association Forums on Communications Law and the Entertainment and Sports Industries. The Journal provides a forum for exploring the complex and unsettled legal principles that apply to the production and distribution of media and entertainment in an international, comparative, and local context. The legal issues surrounding the creation and dissemination of news and entertainment products on a worldwide basis necessarily implicate the laws, customs, and practices of multiple jurisdictions. The Journal examines the impact of the Internet and other technologies, the often-conflicting laws affecting media and entertainment issues, and the legal ramifications of widely divergent cultural views of privacy, defamation, intellectual property, and government regulation. Subscriptions: Print subscriptions are available at an annual rate of $US 50 (domestic) or $US 60 (foreign). Please direct inquiries to the Biederman Institute at Southwestern Law School, 3050 Wilshire Boulevard, Los Angeles, California 90010, (213) 738-6602, or send an email to [email protected]. Back issues are available for $US 30.00 per copy plus $US 5.95 for shipping and handling. Disclaimer: The opinions expressed in the articles published in the Journal of International Media & Entertainment Law are solely those of the authors and do not necessarily reflect those of the Donald E. Biederman Entertainment and Media Law Institute, Southwestern Law School, the American Bar Association, the Forum on Communications Law, or the Forum on the Entertainment and Sports Industries. Law School: For information about the Biederman Institute or Southwestern Law School, please contact Professor Orly Ravid, Southwestern Law School, 3050 Wilshire Boulevard, Los Angeles, California 90010, (213) 738-6842, or send an email to [email protected]. Membership: For information about membership in the Forum on Communications Law or the Forum on the Entertainment and Sports Industries, please contact the ABA Service Center, 321 North Clark Street, Chicago, Illinois 60654-7598, (800) 285-2211, or send an email to [email protected]. Permission to Reprint: Requests to reproduce portions of this issue must be submitted by email to [email protected]. Submission Guidelines: Submission guidelines are printed on the inside back cover of each issue. © 2020 Southwestern Law School The Journal of International Media & Entertainment Law is published twice a year by Southwestern Law School, in cooperation with the American Bar Association. ISSN: 1556-875X. Postmaster: Send address changes to the Biederman Institute at Southwestern Law School, 3050 Wilshire Boulevard, Los Angeles, California 90010. JOURNAL OF INTERNATIONAL MEDIA & ENTERTAINMENT LAW INTERNATIONAL COMPARATIVE LOCAL VOLUME 9 NUMBER 1 2020–2021 SUPERVISING EDITOR Michael M. Epstein Southwestern Law School BOARD OF EDITORS Peter Strand, Chair David M. Giles, Chair ABA Forum on the ABA Forum on Entertainment and Sports Industries Communications Law Peter Bartlett David Goldberg Nathan Siegel Minter Ellison Lawyers University of London Levine, Sullivan, Koch & Schulz Eric S. Brown Robert Lind Mark Stephens Franklin, Weinrib, Rudell & Vassallo, P.C. Southwestern Law School Howard Kennedy LLP Chunghwan Choi Robert Lutz John Tehranian Lee & Ko Southwestern Law School Southwestern Law School J. Alexandra Darraby Michael Scott Cydney A. Tune The Art Law Firm Southwestern Law School Pillsbury Winthrop Shaw Pittman, LLP Jeff Gewirtz Brian A. Rosenblatt Kurt Wimmer NETS Basketball/Brooklyn Bryce, Downey & Lenkov LLC Covington & Burling, LLP Sports & Entertainment Kevin Goering Kyu Ho Youm Norwick, Schad & Goering University of Oregon SUPERVISING STUDENT EDITORS Grace Khanlian & Lauren Landau STUDENT EDITORS –––––––––––––––– Alexandra Figueroa ––––––––––––––––– Cayla Bergman Darian Hogan Andre Pascua Rodrigo Luna-Jauregui PUBLISHED BY THE DONALD E. BIEDERMAN ENTERTAINMENT AND MEDIA LAW INSTITUTE OF SOUTHWESTERN LAW SCHOOL IN ASSOCIATION WITH THE AMERICAN BAR ASSOCIATION FORUMS ON COMMUNICATIONS LAW AND THE ENTERTAINMENT AND SPORTS INDUSTRIES JOURNAL OF INTERNATIONAL MEDIA & ENTERTAINMENT LAW INTERNATIONAL COMPARATIVE LOCAL VOLUME 9 NUMBER 1 2020–2021 SYMPOSIUM FAKE NEWS AND “WEAPONIZED DEFAMATION”: GLOBAL PERSPECTIVES Contents Editor’s Note MICHAEL M. EPSTEIN ARTICLES 1 RICO as a Case-Study in Weaponizing Defamation and the International Response to Corporate Censorship CHARLIE HOLT AND DANIEL SIMONS 33 The Defamation of Foreign State Leaders in Times of Globalized Media and Growing Nationalism ALEXANDER HEINZE 69 Defamation Law in Russia in the Context of the Council of Europe (COE) Standards on Modern Freedom ELENA SHERSTOBOEVA 109 Rethinking Non-Pecuniary Remedies for Defamation: The Case for Court-Ordered Apologies WANNES VANDENBUSSCHE PUBLISHED BY THE DONALD E. BIEDERMAN ENTERTAINMENT AND MEDIA LAW INSTITUTE OF SOUTHWESTERN LAW SCHOOL IN ASSOCIATION WITH THE AMERICAN BAR ASSOCIATION FORUMS ON COMMUNICATIONS LAW AND THE ENTERTAINMENT AND SPORTS INDUSTRIES Editor’s Note This issue is the third of three entirely devoted to articles first presented as papers at our 2018 symposium, Fake News and “Weaponized Defamation”: Global Perspectives. As a complement to the previous two issues, the scholarship in this collection exemplifies the quality and diversity of the ideas and perspectives shared at that remarkable symposium. The first article, “RICO as a Case-study in Weaponizing Defamation and the International Response to Corporate Censorship,” by Charlie Holt and Daniel Simons, laments how corporate use of the U.S.’s Racketeer Influence and Corrupt Organizations Act adds to the corrosive impact of SLAPPs on free speech. Holt and Simons, legal counsel to Greenpeace International, navigate the direct and immediate implications of international human rights law on business interests seeking to use SLAPP actions as a means for private censorship. In “The Defamation of Foreign State Leaders in Times of Globalized Media and Growing Nationalism,” Alexander Heinze uses the example of the Böhmermann affair in Germany to argue against the abolishment of laws that criminalize defamation of heads of state. The author, an Assistant Professor at the University of Göttingen, posits that states which criminalize attacks on foreign government officials should also permit actions for defamation, subject to constitutional speech protections. “Defamation Law in Russia in the context of the Council of Europe (CoE) Standards on Media Freedom,” is by Elena Sherstoboeva, an Assistant Professor at the School of Creative Media and the School of Law at the University of Hong Kong. Informed by the CoE standards, Professor Sherstoboeva compares the ways in which defamation is conceived by two of Russia’s highest courts, the Constitutional and Supreme Courts, and reviews how defamation cases are adjudicated in Russian’s courts of initial jurisdiction. Wannes Vandenbussche, in “Rethinking Non-Pecuniary Remedies for Defamation: The Case for Court-Ordered Apologies,” uses a comparative law analysis to argue that apologies are an overlooked remedy in Western legal tradition that merit reconsideration in jurisdictions that have abandoned it. Dr. Vandenbussche is a research affiliate at the Institute for the Law of Obligations at KU Leuven in Belgium and a recent Fulbright Fellow at Yale Law School. As we bring this issue to publication, I want to express my gratitude to out- going student editors Grace Khanlian and Lauren Landau, who supervised our student staff through the last half-year under less-than-ideal circumstances. The Coronavirus Pandemic has been a challenging time for all of us in 2020. As we begin to emerge from this worldwide calamity, the Journal is looking forward to publishing scholarship that engages the pandemic’s impact on entertainment and media law and practice. As always, your comments, suggestions, and feedback are welcome. Professor Michael M. Epstein Supervising Editor RICO AS A CASE-STUDY IN WEAPONIZING DEFAMATION AND THE INTERNATIONAL RESPONSE TO CORPORATE CENSORSHIP Charlie Holt and Daniel