Weaponising the Law: Attacks on Media Freedom

"Among the many and wide-ranging threats to media freedom that have proliferated in recent years is the mounting number of legal attacks on journalists and journalism, often used to silence public interest reporting and exert control."

This report, published by the Thomson Reuters Foundation in collaboration with the Tow Center for Digital Journalism at Columbia University, identifies and analyses 8 legal threats to journalists around the world. Its purpose is to provide the first step towards a global overview of the weaponisation of the law as a prominent threat to media freedom. The report is intended as a resource that can be used to empower those seeking to navigate the shifting legal environment and support those working to protect the continued coverage of issues such as corruption, organised crime, and human rights. Illustrated with global case studies, it offers 10 recommendations for tangible action to curb negative legislative trends, expand legal support, and enhance cross-sector collaboration.

The report draws on global research carried out by the Tow Center for Digital Journalism in 2022 (which involved a systematic review of national legislation, government regulations, and judicial decisions, as well as reports by media and civil society groups), alongside survey contributions from 37 media freedom experts and the first-hand experience of nearly 500 alumni - representing 106 countries - from the Thomson Reuters Foundation's journalism training programmes.

As explained in the report, legal attacks on the media are on the rise. "Nearly 50% of journalists in the Foundation's alumni network who responded to a survey said that they or their media organisation were facing legal threats, illustrating the sheer scale of this war on journalism. The physical, emotional and financial consequences are enormous for journalists who are continually facing the risk of going to jail, being bankrupted, or repeatedly being dragged into court. Allowed to spread unchecked, the weaponization of the law will continue to curtail media freedom by hampering coverage of critical public interest matters, undermining accountability, and eroding trust in journalism - with catastrophic effects on democracies and freedoms globally."

The following 8 legal threats are discussed in the report. Each discussion includes an overview of the legal threat and an analysis of the trendlines, as well as spotlight cases selected to illustrate the experiences of journalists and media outlets. Positive developments to showcase legal changes in support of change are also included.

• Defamation and insult: misused to prevent open public debate and shield powerful individuals from legitimate criticism.
• Strategic lawsuits against public participation (SLAPPs): by definition, unfounded and lacking merit. Their primary objective is to silence critical voices through harassment, intimidation, and expensive legal proceedings.
• Espionage, treason, and foreign influence: national security laws that can be used to sanction freedom of expression and curtail media freedom.
• Cyber libel and other cybercrime provisions: much-abused sweeping offences in authoritarian regimes and backsliding democracies that are used to target independent and critical journalism.
• Fake news: false information, the spread of which numerous countries are restricting through laws that in fact censor critical reporting.
• Counter-terrorism and anti-extremism: being used in the last few years to crack down on dissent in many countries, which have increased penalties and created vaguely worded terrorism or extremism offences.
• Financial crimes: can result in long-term imprisonment, heavy fines, or unfounded tax bills, which can bankrupt media and independent journalists.
• Lese majeste, desacato laws, and seditious libel: carry the threat of prison or fines for those who criticise or report on public officials. The fear of criminal sanctions discourages citizens from expressing their opinions on issues of public interest.

The main themes that emerged from the research and from those surveyed showed that: Defamation remains one of the most serious threats for journalists; states are racing to criminalise criticism and social unrest in growing efforts to shield those in power from criticism; there is an increasing reliance on "catchall" national security and public order offences to convict journalists; states are increasingly relying on non-speech-related crimes to silence journalists; "clubbing" is a preferred tactic to secure convictions of journalists (i.e., journalists are bombarded with multiple legal charges for each instance of journalistic activity - e.g., a single published article might result in combined charges of false news, "insult", or defamation, along with other charges under broadly defined and all-encompassing offences such as "undermining state interests" or "inciting mass disturbances"); and the weaponisation of the law against journalists is a global phenomenon, with notable leaders that include Myanmar, Russia, Belarus, Nicaragua, and Algeria. Finally, on a more positive note, the research shows that when used to strengthen media freedom, the law can be a powerful tool.

The report concludes by providing 10 recommendations to combat the growing legal threats against media freedom. The focus is on areas identified by the legal experts and journalists consulted for this report, and many of the recommendations build on existing calls for action and media defence work undertaken by expert groups. In brief:

1. Expand research and increase visibility of legal threats: Further research is needed to develop a more forensic understanding of the scope of these legal threats, as well as to develop strategies that are country-specific and take gender and diversity considerations into account.
2. Fund legal support and advocacy: Funders should significantly increase support for media defence organisations that provide and facilitate legal research and support for journalists, train legal professionals, and engage in strategic litigation (the practice of bringing lawsuits intended to effect societal change).
3. Expand legal protection of and defence for journalists: Donors, intergovernmental organisations, and governments should ensure that journalists have access to legal defence funds and legal representation - e.g., through the establishment of new legal aid providers and preventive legal support, such as pre-publication reviews.
4. Build robust legal capacity and expertise: Specialised media lawyers and other legal professionals should expand their capacity and expertise to combat legal threats to journalists and media outlets. These skills need to include responding to non-traditional threats, such as financial crimes. Training is essential to develop and empower lawyers to do so.
5. Utilise the law to generate change: Strategic litigation is a powerful tool that can trigger reform to improve the legal environment in which the media operates. For example, in various Latin American countries, there has been a positive progressive modification of "desacato" laws and enhanced protection of sources.
6. Decriminalise defamation: The abuse of these laws against journalists should reinvigorate global efforts to decriminalise defamation. Governments, intergovernmental organisations, and legal and human rights communities must refocus and re-engage with such initiatives.
7. Adopt anti-SLAPPs safeguards: States should implement safeguards such as early dismissals, capping the cost of legal defence, or imposing penalties on SLAPP filers. Organisations should support governments to adopt these legal reforms, and donors should bolster the work of civil society organisations working to tackle the issue.
8. Confront the abusers: Democratic governments, intergovernmental organisations, and the Media Freedom Coalition should boldly confront governments that are abusing the law to curtail media freedom.
9. Support journalists in exile: Legal threats and prosecutions are forcing some journalists to choose exile over jail. The international community should support journalists forced to flee their countries because of legal harassment with emergency visas, resettlement support, and resources to continue legal action.
10. Collaborate and coordinate to maximise impact: Siloed action is not sufficient to reverse the weaponisation of the law. National and global collaboration among media defence organisations and legal service providers, between local and international lawyers, and between media law and non-media law specialists, is essential.

The report was launched with a panel discussion hosted at the International Journalism Festival in Perugia, Italy, in April 2023, which can be viewed below.

In addition to the full report, a shortened interactive version of the report is available online. It includes video testimonials of journalists who have experienced the different forms of legal harassment.