Brazil
The case of judicial harassment against journalists in Brazil
Decision Date: May 22, 2024
The Federal Supreme Court of Brazil delivered a judgment identifying and preventing Strategic Lawsuits Against Public Participation (SLAPPs). Two media associations had filed separate applications seeking orders from the Court to recognize the judicial harassment created by the filing of multiple compensatory lawsuits in different cities over the same news report or story and to provide constitutional interpretations of various laws governing those types of lawsuits. The Court found this practice to be an abusive use of legal action, burdening journalists with the need to defend themselves in various locations for the same incident. Recognizing the SLAPP aspects of such cases, the Court provided a constitutional interpretation of the Brazilian Civil Code and Civil Procedure Code, stipulating that cases of judicial harassment against freedom of expression and the press — characterized by the use of multiple lawsuits across different jurisdictions aimed at obstructing the defense rights of journalists or media outlets — must be consolidated for unified adjudication in the defendant’s local jurisdiction. The Court also found that civil liability for journalists or media outlets would only be established in cases involving deliberate misconduct and gross negligence.

India
Bloomberg v. Zee Entertainment
Decision: March 22, 2024
The Supreme Court of India set aside an ex-parte interim injunction granted by a lower court and affirmed by the Delhi High Court against Bloomberg Television for publishing an article on alleged financial irregularities at Zee Entertainment Enterprises Ltd. Zee had sought the injunction on defamation grounds, claiming the article was unsubstantiated. Although the Supreme Court did not express comments on the merits of the case, it found that the lower court’s order lacked a detailed assessment of the three-fold test required in the grant of interim injunctions. The Court found that pre-trial injunctions against publications can negatively impact the right to free speech and citizens’ right to know and could become a “death sentence” to the material sought to be published. The Court described how ad-interim injunctions could be misused in defamation and/or SLAPP suits to prevent free speech and stifle public participation. The Court ruled that an interim injunction should be issued very carefully in cases only where the content is demonstrably “malicious” or “patently false.”

Northern Ireland
Kelly v. O'Doherty
Decision Date: January 8, 2024
The High Court of Northern Ireland (King’s Bench Division) dismissed Gerard Kelly’s defamation lawsuit against Malachi O’Doherty, determining it was a SLAPP (Strategic Lawsuit Against Public Participation) designed to abuse the process of the court and to suppress criticism rather than to genuinely address reputational damage. Kelly claimed that O’Doherty’s statements in radio interviews, suggesting he had shot a prison officer, were defamatory. O’Doherty argued that Kelly’s general reputation was of a convicted bomber who was involved in the escape from lawful custody and shooting of a prison officer and therefore his reputation could not be lowered in the minds of the right-thinking people. The Court found that although there was ambiguity about which of the two convicts – Kelly or Storey – fired the shot at Adams, it was “extremely difficult” to refute Kelly’s involvement as a joint tortfeasor in the offense of battery. The Court further noted Kelly’s selective targeting of freelance journalists, while ignoring broader media coverage of similar content, indicating an intent to intimidate rather than seek true redress. Therefore, the defamation proceedings against O’Doherty were struck down by the court as they were “scandalous, frivolous and vexatious” and an abuse of the process of the court. The Court awarded O’Doherty both the costs of the application and the costs of the action on an indemnity basis.

European Court of Human Rights
Tuleya v. Poland
Decision Date: July 6, 2023
The European Court of Human Rights ruled that the measures taken by the Polish authorities against a judge, recognized by civil society as a defender of the rule of law and the independence of the judiciary during the Polish constitutional crisis, were infringements of his right to freedom of expression. The judge had been subjected to various preliminary disciplinary enquiries and was eventually suspended from judicial office. The Court held that the measures taken against him were in response to his critical statements and constituted a disguised sanction and concluded that the interference was not “prescribed by law” and did not pursue a legitimate aim.

United States
Lindell v Mail Media Inc.
Decision Date: December 10, 2021
The US District Court in Southern New York dismissed Michael Lindell’s defamation complaint against Mail Media Inc. and Laura Collins and granted the defendants’ Motion to Dismiss since Lindell failed to state a viable claim. Lindell claimed that the article entitled, “EXCLUSIVE: Trump-loving MyPillow CEO Mike Lindell had a secret romance with 30 Rock actress Jane Krakowski and wooed her with flowers and champagne in a relationship that BAFFLED her friends” was defamatory. However, the Court noted that Lindell failed to identify any statements in the article that “a reasonable person would view as defamatory,” both regarding his alleged romance with actress Jane Krakowski and his association with alcohol gifts. The Court asserted that dating an actress, whether secretly or not, would not have evoked “public hatred,” “shame,” “ridicule,” or similar sentiments towards Lindell as both of them were unmarried adults. The Court observed that the article did not impute “immoral relations” between them. The Court determined that the article did not defame Lindell either expressly or implicitly. In light of the dismissal of the complaint, the defendants argued for attorneys’ fees under New York’s SLAPP (Strategic Lawsuit Against Public Participation) statute. However, it was not granted due to the absence of a separate lawsuit.

NOVEMBER 27: Webinar on Digital Rights and Platform Regulation. The Centre for Law and Democracy (CLD) will host a webinar on digital rights, focusing on standards and emergent practices of online platform regulation. Toby Mendel, Executive Director at CLD, and Raphael Vagliano, Legal Officer at CLD, will deliver presentations on international standards concerning digital rights and online speech regulation. Ana Bejarano, Co-Director of El Veinte, a Colombian freedom of expression organization active in digital rights litigation, will speak from a practitioner’s perspective. CLD welcomes lawyers who seek a better understanding of international law while practicing nationally. November 27, 2024. 8:30 AM ET / 2:30 PM CET. Register to join via Zoom. The draft agenda is available here.

● US: Trump Threatens New York Times, Penguin Random House over Critical Coverage, by Lachlan Cartwright. Columbia Journalism Review (CJR) reports on the latest string of legal threats from Donald Trump. A week before the election, lawyers at the New York Times and Penguin Random House received a letter from Trump’s attorney, demanding $10 billion in damages over “false and defamatory statements,” calling the Times “a full-throated mouthpiece of the Democratic Party” that applies “industrial-scale libel against political opponents.” Around the same time, Trump sued CBS News over the 60 Minutes interview with Kamala Harris and the Washington Post over alleged “illegal in-kind contributions to Harris’s campaign.” In early November, on behalf of Chris LaCivita, Trump’s campaign Co-Chief, lawyers wrote to the Daily Beast, demanding a correction and retraction in articles about LaCivita. CJR stresses the legal threats point to what Trump’s second term will be like for journalists. CJR also reminds readers that having initiated a libel case against journalist Tim O’Brien in 2005, Trump was clear about his goal: “I did it to make his life miserable,” Trump said of O’Brien.

● Thailand: New Reports on Criminal Defamation SLAPPs. In a recently published report, ARTICLE 19 analyzes criminal defamation laws in Thailand and the lèse-majesté provision specifically: the law criminalizes criticism of the monarchy and has been employed in suppressing dissent. The report builds on ARTICLE 19’s 2021 study and notes that more journalists, activists, and whistleblowers have faced criminal defamation cases over the last few years. ARTICLE 19 calls on Thailand to decriminalize defamation, reform civil law, and address SLAPPs. Another recent report, published by TrialWatch, a project of the Clooney Foundation for Justice, and authored by Dr. Francesca Farrington and Saovanee Kaewjullakarn, interrogates the state of criminal defamation laws in Thailand and examines the existing anti-SLAPP framework. Having reviewed 36 criminal defamation cases, the authors conclude that Thailand’s anti-SLAPP framework is not working. The report proposes recommendations for a new anti-SLAPP law, reiterating the need to decriminalize defamation. 

● Nigeria: WikkiTimes Publisher, Reporter, Face Criminal Charges over Corruption Reporting. The Media Foundation for West Africa (MFWA) condemns the new SLAPP action initiated against a publisher and a reporter over an investigative report published in April 2024 by WikkiTimes, an online newspaper based in Bauchi, Nigeria. The investigation revealed how Mansur Manu Soro, a Member of Parliament, “allegedly appropriated millions of public funds through contracts improperly awarded to his associate in Bauchi State.” MFWA reports Soro’s apparent proxy (and a business executive) initiated the lawsuit. The charges brought against Yawale Adamu, the reporter, are criminal defamation, falsehood, and mischief. The court also issued a bench warrant against Haruna Mohammed Salisu, the newspaper’s publisher, who remains outside Nigeria. 

Legal Threats Against Lawyers Protecting Journalists: Preliminary Findings. The American Bar Association Centre for Human Rights, Media Defence, and Thomson Reuters Foundation are reviewing cases of harassment and persecution of lawyers who represent journalists. The research, a first of its kind, surveyed the last ten years and identified 40 cases, most of them across Guatemala, Turkey, Azerbaijan, Russia, Zimbabwe, Kyrgyzstan, Ethiopia, Belarus, China, and Hong Kong. The preliminary report notes the cited figures likely do not fully account for the persecution of lawyers defending journalists worldwide. The initial findings point to four groups of threats. 1) Criminal and other lawsuits: examples include “anti-state, anti-terror, bribery and corruption laws, as well as false news laws.” 2) Undermining the lawyers’ ability to defend journalists: tactics range from seizure of lawyers’ property (such as case files) to disqualification from a particular case to cyberattacks and spyware. 3) Undermining the lawyers’ ability to practice their profession: authorities resort to arbitrary disbarment or suspension of licenses, abuse of disciplinary proceedings, change of bar association rules, and “foreign agent” labels. Finally, lawyers have faced 4) Death threats, physical assault, forced exile, and restrictions on travel and communication.  

● Future of Free Speech is Hiring: Research Associate, AI Policy & Free Speech. The Future of Free Speech, an independent think tank based at Vanderbilt University, Nashville, Tennessee, is seeking a Researcher with technical AI expertise to work on a project at the intersection of AI policy, freedom of expression, and access to information. The project will continue for at least one year. The candidate can be based in Nashville or work remotely. Apply by December 8, 2024. Find out more here.

● Media Defence is Hiring: Legal Officer. Media Defence, an NGO defending the rights of journalists and media, is looking for a full-time Legal Officer to work in a hybrid mode – remotely and in Central London. The position entails strategic litigation, case support to lawyers, grant-making, and delivering training on media law, among other responsibilities. The deadline is December 15, 2024. Learn more here.