The experienced Swedish investigative journalist Annelie Östlund has no qualms about it: the toll she pays for her work is very heavy. For herself, and also for her family.
But when she and her Swedish colleague were taken to court in 2020 by a Swedish businessman about whom they had written a series of articles in Swedish, it happened not at home, but at a court in London.
A lot of money is at stake. The man says his reputation has been damaged by pieces by the two about shady trading in his company’s stock. That damage would be for this Svante Kumlin no less than 13 million British pounds (15.5 million euros). The journalists, their online magazine Realtid and the editor-in-chief now run the risk that they will have to pay for that amount.
In Sweden, the businessman could never have sued the journalists as individuals (there he could only have sued the editor-in-chief and publisher of the online magazine). And he can only demand such a large amount in the United Kingdom.
In addition, from Monaco, where the man lives, his lawyers have threatened the two journalists that they face a year in prison in the principality if the article is not retracted. In London, the case has been dragging on for almost a year and a half. And all the while, Östlund and her colleague Per Agerman live in great uncertainty about their future.
Press freedom and human rights organizationsand also the European Commission, see it as a typical example of a growing problem. Rich and powerful people and organizations bringing lawsuits against critical journalists – sometimes in third countries, often without good reason, sometimes in several courts at once. The aim is to extort the journalists, entangle them in legal proceedings for years, intimidate and, if possible, silence them. This is often more important for the complainants than whether they are ultimately proved right by the judge.
These kinds of things are called SLAPPs, Strategic Lawsuits Against Public Participation, lawsuits in which the right is abused to prevent the defendant from contributing to public debate. In addition to journalists, activists, whistleblowers, academics and environmental and human rights organizations are also targeted.
Sometimes one person, or one organization, receives an accumulation of lawsuits from one and the same complainant. Even if a complainant has a justified complaint, the exceptional gravity of the means he uses may indicate that it concerns a SLAPP case. “It’s like attacking a fly with a sledgehammer,” says Per Agerman. The European Commission considers the problem so serious that last month it a package of measures has proposed to combat these practices (see stake†
“This affects my husband and my 10-year-old daughter too,” says Östlund. “I think we win the case, but if we lose, we, and Realtid too, would go bankrupt. We should sell our house.
“My husband doesn’t like it. He doesn’t want to talk about the case, he doesn’t want to think about it, and he doesn’t want our daughter to hear me talk about it. He thinks I should do something other than investigative journalism. But I never considered that. I am naturally tenacious.”
Her colleague Agerman says the case keeps him busy every day. “I put in a lot of hours – unpaid hours.” Östlund and Agerman, who have been working together for years, are both freelancers. But they are backed by Realtid and the editor-in-chief, who have also been sued by Kumlin and his company (Eco Energy World, EEW, producer of solar power plants).
“It’s good that you can go to court to object to a publication,” says Agerman. “But I don’t understand why journalists from a Swedish publication that is hardly read or even quoted in the United Kingdom should defend themselves in London against the complaint of a Swedish businessman.”
On Wednesday, the High Court ruled that five of the eight complaints against the Swedes cannot be heard in the United Kingdom, but three can. “That could take another two years,” stlund sighs when she has just heard the statement. “But it has become part of my life. And in the end we will win. Our submissions were based on publicly available sources and we will defend them in court in the name of the truth and the public interest.”
Murder Maltese journalist
“Since the 2017 murder of Maltese journalist and anti-corruption blogger Daphne Caruana Galizia, SLAPPs have been on our radar as a major problem,” said Jessica Ní Mhainín, policy and campaign manager for Index on Censorship, an organization that stands up for freedom of expression. “At the time of her death, she had nearly 50 libel cases pending.” Lawsuits had been filed against Caruana Galizia not only in Malta, but also in the United States and the United Kingdom. “British law firms were also involved in this harassment of her.”
In a SLAPP, the complainant is about making the legal process “as lengthy and painful as possible and thus exhausting the accused, making him or her feel like he or she is drowning in the amounts of time, money and energy it all takes.” ”, says Ní Mhainin.
According to experts, it is not possible to determine exactly when a SLAPP is involved. “That is why we at Index on Censorship look at certain symptoms to determine whether a case is a SLAPP. Does the accused speak out on matters of social importance? Is the complainant powerful or very rich? Are very high amounts being demanded? Does the trial focus on a journalist or activist as an individual, who alone is usually weaker than an organization?”
On the Index on Censorship website, journalists and others who are the target of legal proceedings an interactive questionnaire to identify whether a lawsuit threatened or has already been filed against them is suspected to be a case of SLAPP. The tool is available in English, Italian, Spanish, French, German and Polish.
European countries where notable SLAPP cases have been brought include Poland, Bulgaria, Romania, Slovenia, France, Belgium, Italy, United Kingdom, Ireland, Croatia, Estonia, Cyprus, Spain and Portugal. In the Netherlands it seems to occur only incidentally, according to Rutmer Brekhoff, lawyer employed by the journalists’ union NVJ.
“Nevertheless, a certain legal pressure is experienced here, but you can usually hardly see that as a SLAPP. Sometimes people who are being written about threaten themselves with very high claims for damages, without having engaged a lawyer. Or lawyers write a so-called ‘bark letter’ – and often it ends there and never ends in a lawsuit. Compensations awarded in the Netherlands for reputational damage are usually not very high, about one thousand to five thousand euros.”
In the European Union, the number of SLAPPs has increased sharply in recent years. From four cases in 2010 to 24 in 2016 and 111 in 2021, according to a report from CASEa coalition of human rights, environmental and press freedom organizations (including Greenpeace and Index on Censorship) that seeks to make SLAPPs more difficult.
“Those numbers are only an approximation of the real number,” says Ní Mhainín. “Not all journalists who are targeted dare to report it to us as SLAPP. Some fear that this will annoy the judge and make their situation even more difficult.
“But we see that the opposite is the case. When we bring a case to the public eye, some complainants leave their target alone. We are convinced that the worst thing you can do as a journalist in such a situation is to sit still and keep your mouth shut.”
Businessmen and oligarchs
The fact that complainants from all over the world go to court in London has to do with the fact that legal costs in the United Kingdom are “incredibly high,” says Ní Mhainín. “Wealthy businessmen and oligarchs can afford to hire the best lawyers in the world.” That is intimidating for accused journalists, who have to hire lawyers for a lot of money. The UK is also so attractive to complainants because there are law firms specializing in defamation cases.
But while the number of SLAPPs has increased significantly in recent years, significant progress has also been made in combating the phenomenon, says Ní Mhainín. “At first, journalists involved were very reluctant to talk to us about it. Now journalists come to us of their own accord to report cases.”
She finds the draft directive presented by the European Commission in April ‘very encouraging’. “Now all member states must make an effort to counter SLAPPs, thus protecting our freedom of the press, freedom of expression and democracy.”
Illustrations Gijs Kast