The media and investigative reporters in particular are facing a new kind of onslaught, this time not from the state but from elements of the private sector.
The site of this battle is the courts, and the hired guns are large teams of senior and junior counsel (eight silks representing one party in a recent case).Often the cases are flimsy, but the intention is — win or lose — to wear the journalists down, distract them from their work and drain their resources with large legal fees. These are called SLAPP suits, or strategic litigation against public participation — legal action that is not in pursuit of justice but is intended to make it too costly for investigative reporters or activists to do their work.
Such legal action is often accompanied by what are politely called public relations campaigns but are more like Bell Pottinger-style social media attacks on critical individuals: an onslaught of abusive and threatening messages.
A number of recent cases have highlighted these trends and the need for legislation to stop SLAPP suits.
Recently, we saw former president Jacob Zuma’s private prosecution of journalist Karyn Maughan. Fortunately, a full bench of the high court threw I tout with full costs, agreeing that it was a SLAPP suit and there is a need for protection against such abuse of the law.
Until now, SLAPP suits have been limited to civil action, such as defamation, but this case established that a criminal prosecution could also qualify as a SLAPP — and the court had little tolerance for it.
The prosecution, Maughan’s lawyers said, has been “instituted for the sole purpose of silencing her and not to vindicate a right”. The judges concurred, saying it “infringes on her right to freedom of expression … and the public’s right to information. It has the effect of intimidating, harassing and silencing her as its ulterior motive.”
They highlighted ongoing and escalating online attacks on her — including threats of rape and death — designed to add to the pressure.
Even though Maughan won the case with costs, the stress, work and time it took would have weighed heavily on her and her employer. The danger is that it has a chilling effect, encouraging newsrooms to stay away from covering certain people and stories because the risks are too high.
Then came the Moti Group’s attack on the investigative journalism unit amaBhungane, which had been publishing a series of stories on the group’s dubious relationship with elements of the Zimbabwe government. Rather than answering amaBhungane’s questions or offering counter-evidence, the Motis got an ex parte (secret) order to stop amaBhungane publishing further and to return what they said were stolen documents.
amaBhungane rushed to court to argue that there was no basis for this order to be issued in secret, that the documents were leaks and publishing them was in the public interest. Moti used eight counsel to draw up the papers, leading the judge to express his heartfelt gratitude that only four could make it to court. It was a show of muscle, an act of corporate bullying dressed up in the respectable robes of counsel, to signal that the Moti Group could and would throw vast resources at its critics. It would have been done in the knowledge that if they had won, they would have burdened amaBhungane with costs that might close it down.
Deputy judge president Ronald Sutherland threw the case out with contempt, recognising it as a SLAPP suit and again pointing to the need to preven tsuch abuses of the law. Again, full costs were ordered.
In this case, the Motis probably suffered from what is called the Streisand effect, which comes from the singer’s court action that was intended t opreserve her privacy but which brought a whole lot more attention than she wanted. Many more people have probably now read amaBhungane’s stories on the Motis after all this media attention.
Still, the amaBhungane team had to spend days preparing for and appearing in court, and dealing with the resultant stress. When they get down to their next story on the Motis, it will be hard not to be extra careful, knowing that the Moti legal team is on standby.
The use of the courts by deep-pocketed private interests in this way is a growing international practice, and more and more SLAPP cases are being reported around the world.
Renowned English human rights lawyer Geoffrey Robertson KQ calls it “lawfare” — “the use of legal strategies to harass or intimidate publishers, to make them pay, literally, in large and unrecoverable legal fees (if they win), and in heavy damages if they lose”.
Well-known Guardian columnist George Monbiot last week called it “the war against dissent”. In the UK companies are taking out devastating civi linjunctions against climate activists and making them pay the costs, he said.
To be clear, this comes from specific elements of the private sector — those who have the most to fear from investigative reporters. A number of SA companies and corporate leaders have given valuable support to the work of investigative reporters in recent years.
Fortunately, the courts have stood strong, protecting the freedom of the media and speaking out about the need to stop SLAPP suits. (Though there is no explaining judge John Holland-Müter, who issued the fiirst ex parte order against amaBhungane).
But the pattern points to the need for legislation to allow SLAPP suits to get slapped down quickly and cheaply. Genuine suits must go ahead, but the malicious ones must be stopped early.
Robertson calls for an end to injunctions on public interest stories and an end to corporate power to sue, saying the right of privacy should belong onl yto individuals and not companies. He also calls for “a fast-track procedure to nip unmeritorious claims in the bud”.
The EU is drawing up anti-SLAPP legislation. Three Canadian and 31 US states have adopted such legislation. It’s time we did.
• CFE appeared as friends of the court in the Maughan and amaBhungane cases.