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The silence behind the SLAPP

Photo: Kristina Flour, Unsplash

It is no easy matter to be slapped with a financially crippling lawsuit in another country – this was clear during an international debate where journalists shared their experiences fighting back efforts to silence them.

Strategic Lawsuits Against Public Participation (SLAPP) are notoriously long drawn out and extremely expensive legal battles filed by organisations or individuals in an attempt to silence opinions or criticisms made by media organisations and journalists.

And many times, the technique works because the media organisation quietly withdraws the story or statement targeted by the person who filed the SLAPP, to avoid a lawsuit that would create hefty legal bills that could easily run into hundreds and thousands of euro.

But, there is also another way that journalists can fight this battle and that is to continue the investigation that triggered the suit, digging even deeper into the issue that provoked the legal action.

That is how investigative journalist Paul Radu, co-founder of the Organised Crime and Corruption Reporting Project (OCCRP), settled his SLAPP suit filed by an Azerbaijani politician in the UK over an article about corruption in a distant country.

This is a key element of SLAPP suits – organisations “shop” around to find the best place to file a libel suit against journalists, according to Caoilfhionn Gallagher QC, barrister at London firm Doughty Street Chambers speaking during an anti-SLAPP conference organised by Greenpeace earlier this month.

London, for example, is known to be notoriously expensive. A defendant would easily rack up a huge bill in legal fees – something that can easily cripple a media organisation. The State of Virginia in the US has also become a very popular jurisdiction to file these defamation lawsuits because of its weak anti-SLAPP legislation.

Radu was slapped with a defamation suit because he was one of the journalists who worked on, and broke, the OCCRP story of The Azerbaijani Laundromat – a complex money-laundering operation and slush fund that handled $2.9 billion over a two-year period through four shell companies registered in the UK. These funds were used to bribe European politicians, launder money and buy luxury goods, the investigation showed.

Radu shared the challenge of his experience with other journalists: “Although I knew to expect a long and difficult process, it was still more painful than I could have imagined, sucking up vast amounts of time, energy and money, and taking me away from my work for long periods”.

It was crucial for him to fight the SLAPP suit because there was more than his reputation at stake. “If the journalist who first uncovered laundromats was ruled by a London court to have reported falsely, the decision could have long-term repercussions for criminal cases based on the laundromat data. This may even be the intent of some lawsuits — after all, it’s easier to win a libel case in the UK than most other types of case. What better way to undermine a criminal case?”

Yet, the SLAPP suit opened a line of defence that become one of the key elements of the multi-faceted action plan drawn up by Radu and his legal team. He continued his investigation – this time using his British lawyers and a strong investigative team to get hold of documents through subpoenas filed in court. They did this, knowing that all the evidence would be passed on to the opposing legal team as part of disclosure.

Just before the trial was due to start, the politician asked to settle the matter, which they did. As part of the agreement, the OCCRP attached a statement to the Azerbaijani articles.

“I recommend that if you are sued, you consider the case to be another investigative project. You will need to bring partners together and start a significant investigation. Be aware this investigation may fall under disclosure rules, so plan accordingly.  You need to find everything they were involved in. You may find more evidence than you ever imagined,” Radu said.

This line of defence was also raised by Matthew Caruana Galizia, son of murdered journalist Daphne Caruana Galizia, who also faced SLAPP lawsuit including one filed in Arizona by the owner of the now-defunct Pilatus Bank for $40million.

“In most of the cases we’ve been able to get them to backfire simply by continuing the investigations – so by uncovering more information we find out that, for example, the money laundering is more serious than what was originally reported… if we are talking about a bank that is suing,” Caruana Galizia said.

They would back off simply because “they don’t want more evidence to come out during the trial or cross examination and they drop the case”.

Last month, the Bulgarian owner of Satabank in Malta filed two separate SLAPP lawsuits in a Bulgarian court against Maltese blogger Manuel Delia and The Times of Malta. The Shift also faced threats of SLAPP lawsuits from Henley and Partners and a Russian banker demanding that stories be taken down. The Shift refused and published the threats received.

SLAPP suits are usually preceded by a letter threatening to sue and, according to the California Anti-SLAPP Project (CASP), it was important not to give in to the demands before determining whether there was a legitimate threat.

“One of the defining qualities of a SLAPP is the lawsuit’s lack of merit.  If the threatened lawsuit is a SLAPP, there is no need to give in to the demands made in the threat letter — in fact, it may well be the filer of the lawsuit who ends up owing money for bringing the meritless claim,” said CASP, a public interest law firm and policy organisation dedicated to fighting SLAPPs.

This phenomenon of quietly taking down the offending article is commonplace as a defence mechanism to avoid a lengthy and expensive legal battle against organisations with deep pockets. Pilatus Bank had in fact succeeding in getting the mainstream media in Malta to remove a number of reports on the bank’s operations.

Caruana Galizia said he only realised after his mother’s death that other journalists would give in to threats while she refused to withdraw what she wrote and would publicly expose the threat.

“After she was murdered many journalists came forward saying they wished they stood by her. This was really disturbing to hear as we discovered the extent of the problem – most of the time you don’t know newspapers are pulling articles or editing them because of legal threats. We had started to find out how bad the problem was.”

This silent move to avoid SLAPP creates a situation where the full extent of the problem is not yet understood. In an attempt to get a clearer picture, international organisation Index on Censorship just launched a year-long research project to investigate the scope and scale of SLAPP suits in the UK, EU, and Norway.

The NGO is calling on all media organisations and journalists who are, or were, targets of legal threats and actions to fill an anonymous online questionnaire – this information will then be included in their research that will lead to policy proposals.

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