Three ways Europe can do a better job protecting journalists
By Janna Brancolini
The unsolved murders of Daphne Caruana Galizia and Ján Kuciak have highlighted flaws in Europe’s legal framework to protect journalists
Seven months after journalist Daphne Caruana Galizia was killed in a car bomb outside her home in Malta, three suspects have been charged with her murder — but it’s still not clear who ordered the Mafia-style hit or why.
In Slovakia, not a single suspect has been charged in the case of journalist Ján Kuciak and his partner, who were assassinated in their apartment in February.
Galizia and Kuciak’s deaths — and the authorities’ subsequent failure to suss out the perpetrators and their motives — follow a global pattern, journalist Carlo Bonini of the Italian daily La Repubblica said in a talk last month.
Both reporters were investigating ties between organized crime and their respective governments at the time of the killings. Both represent the perhaps surprising fact that it’s more dangerous to investigate domestic corruption at home than to report in war zones.
And both exemplify the fact that when journalists are killed at home, their murders are rarely solved — even in European liberal democracies.
The murders and subsequent investigative failures have revealed inherent weaknesses in Europe’s legal framework to protect journalists, according to investigative journalists, press freedom activists and even some progressive politicians.
“When Daphne died people wondered if it would happen again,” Galizia’s sister Corinne Vella said during the talk with Bonini. “Now that Jan has died, it’s not a question of if it will happen again, but who and when.”
Here are three ways Europe can do a better job protecting journalists going forward.
1. Conduct international investigations to end the killing with impunity
When journalists are killed at home their murders are investigated at home. Only about 10 percent of investigations result in convictions worldwide, according to UNESCO, and the figure is not much better among European democracies.
“In 85 percent of cases concerning killing of journalists in the OSCE region during the past 25 years, the perpetrators and masterminds remain unpunished,” the Organization for Security and Co-operation in Europe reported last year. “Impunity leads to self-censorship and breeds further violence.”
These figures show that international investigations are needed to bring perpetrators to justice and prevent future killings, Vella said.
One problem is that the European Union Agency for Law Enforcement Cooperation, or Europol, has been assisting with the Galizia killing but faces challenges due to limited jurisdiction.
The agency must “rely on the information provided by the designated national competent authorities” and “report developments in the case, including any matters arising of concern, solely to those authorities,” Europol’s Executive Director Rob Wrainright wrote in a letter to European Parliament Member Ana Gomes last month.
Gomes, a Portuguese socialist, has led a fact-finding delegation to Malta and expressed concerns that the government isn’t fully cooperating with Europol — a concern that Kurt Farrugia, head of communications for the Maltese government, denies.
Still, the fact that such a situation could even arise in the first place — both in Malta and in Slovakia — makes it clear that independent, international investigations are necessary, according to some MEPs.
On Thursday, European Commission President Jean-Claude Juncker said at a joint press conference with UN Secretary-General Antonio Guterres that he supported the creation of the position of a UN Special Representative for the Safety of Journalists.
“We have proposed to our friend to appoint a Special Representative for the Safety of Journalists because it is a subject that worries us more and more in Europe and beyond,” Juncker said.
It’s not clear, however, how long this would take or what it would accomplish.
The European Commission has so far refused to call for a European investigation of the murders, saying it wanted the local investigations to “run their full course.” It might still bow to increasing pressure from journalists and progressive MEPs, though.
2. Help journalists fight abusive lawsuits
Besides being physically threatened, journalists across Europe face frivolous lawsuits meant to silence and harass them. The cases are brought under national libel laws, which prohibit journalists from publishing false information.
Often, however, lawsuits are brought simply to suppress negative reports. These cases have a severe impact on overall press freedom because they force journalists self-sensor for fear of being dragged into lengthy, expensive court proceedings.
At the time of her murder, Galizia was facing an astonishing 34 libel cases in Malta.
Fortunately, a model for a legal remedy for journalists exists in the form of “anti-SLAPP” legislation — legislation that Europe can and should adopt if it wants to strengthen press freedom.
“SLAPP” stands for “Strategic Lawsuit Against Public Participation.” An anti-SLAPP measure is therefore a judicial procedure that allows a journalist to request that the lawsuit be immediately dismissed because it was specifically brought to silence or intimidate the journalist, not to correct false information.
Anti-SLAPP measures are an established legal principle in the U.S., where 28 states have implemented some form of procedural protection for journalists.
In February, a group of six MEPs proposed a European directive that would require EU states to implement their own domestic forms of anti-SLAPP legislation.
“This practice [of bringing SLAPPs] is abusive, poses a threat to media freedom and has no place in the European Union,” the MEPs wrote in a letter to Frans Timmermans, vice president of the European Commission.
A key aspect of the legislation is to create — and enforce — a short procedural timeline, and to include specific standards to help courts immediately recognize when a lawsuit is abusive as opposed to a legitimate claim.
For example, California’s anti-SLAPP statute requires the court to hear the journalists’ motion within 30 days and limits the other side’s ability to drag out the proceedings with document requests and other stall tactics.
The journalist does not have to prove that the other party intended to silence him or her, as this could require a serious investment of time and resources.
The journalist only needs to show that the anti-SLAPP criteria are met, namely that (s)he has been sued for an act that was “in furtherance of [the constitutional] right of petition or free speech… in connection with a public issue.”
The statute automatically protects journalists who are reporting any statements made before a government body or official proceeding; connected to an issue under consideration by a government body; or made in a public forum and connected to an issue of public interest.
It also protects a broader category of “any conduct in furtherance of free speech in connection with issues of public interest.” Courts have found that this includes reporting statements about the character of a public official or reporting on the financial solvency of a large institution, such as a hospital.
The six MEPs have recognized that Europe can use successful American anti-SLAPP laws as a starting point to strengthen its own legal protection of journalists.
3. Help journalists protect their sources
Finally, journalists cannot do their work effectively if they have to choose between their own safety and that of their sources.
In many European countries, journalists can be jailed if they refuse a court order to name their sources in connection with criminal and other investigations. However, only a handful of states have strong protections in place for whistleblowers, according to Transparency International.
For the past few years, NGOs, trade unions and journalists have been petitioning the European Commission to pass a Whistleblower Protection Directive that would make it illegal for companies and government institutions to punish whistleblowers who report internal wrongdoing.
Finally in April, the European Commission announced proposed EU-wide standards to protect whistleblowers from being fired, having their identities revealed, or suffering other forms of retaliation.
The move was a direct response to recent scandals such as the Volkswagen emissions cover-up, the Panama Papers and the Cambridge Analytica revelations, the Commission said.
The proposed legislation would also require companies with more than 50 employees or an annual turnover of EUR 10 million to establish internal procedures to handle whistleblowers’ reports.
It would require whistleblowers to first report the abuse through proper channels and wait to see if appropriate action is taken, unless it would be unreasonable to expect them to use official reporting channels due to “imminent or manifest danger for the public interest, or to the particular circumstances of the case.”
The European Parliament’s Greens party MEPs and members of the European Free Alliance praised the proposal for its wide scope. The proposed Directive goes beyond purely illegal acts to protect whistleblowers who report potentially unlawful acts, as well as those that go against “the spirit” of the law.
It’s now up to the European Parliament to take action on the proposed legislation.
Did you enjoy this story? Sign up to receive Kheiro Magazine straight to your inbox.
