Journal of International Media and Entertainment Law (JIMEL)

This is the third of three posts in this series. The first post (Volume 8.1, containing 4 issues) can be found here.
The second post (Volume 8.2, also containing 4 issues) can be found here.

Southwestern’s Biederman Entertainment Blog is thrilled to provide readers with a roadmap to twelve articles on Fake News and “Weaponized Defamation” recently published in the Journal of International Media & Entertainment Law (JIMEL). JIMEL is the scholarly journal of the Biederman Institute, published in association with the American Bar Association’s Forum on Communications Law and the ABA’s Forum on the Entertainment and Sports Industries.

JIMEL’s last three issues have been devoted entirely to articles from Southwestern’s pre-pandemic symposium conference, entitled Fake News and “Weaponized Defamation”: Global Perspectives. Organized in partnership with the Southwestern Law Review and the Southwestern International Law Journal, the symposium’s Call for Papers yielded submitted abstracts from more than 100 scholars and practitioners from every corner of the world.

According to Professor Michael Epstein, JIMEL’s top editor, this collection of articles “digs deep into causes and impacts of disinformation spread by state and non-state actors; and the increasing use of asymmetric defamation litigation by the powerful to curtail an independent free press.” The scholarly contributions from this symposium “resound with new urgency in 2021,” Professor Epstein said, “as countries, including the United States, face political unrest and a gap between science and rumor in their efforts to contain a worldwide coronavirus pandemic.”

In this Volume (9.1):

  1. RICO as a Case-Study in Weaponizing Defamation and the International Response to Corporate Censorship • Charlie Holt & Daniel Simmons
  2. The Defamation of Foreign State Leaders in Times of Globalized Media and Growing Nationalism • Alexander Heinze
  3. Defamation Law in Russia in the Context of the Council of Europe (CoE) Standards on Media Freedom • Elena Sherstoboeva
  4. Rethinking Non-Pecuniary Remedies for Defamation: The Case for Court-Ordered Apologies • Wannes Vandenbussche

 


Volume 9.1, Issue 1

RICO as a Case-Study in Weaponizing Defamation and the International Response to Corporate Censorship

Charlie Holt & Daniel Simmons

“The emergence of the Racketeer Influenced and Corrupt Organization Act as a corporate weapon against critical advocacy represents an aggressive new phase in the evolution of Strategic Lawsuits Against Public Participation in the United States.”

In RICO as a Case-Study in Weaponizing Defamation and the International Response to Corporate Censorship, authors Charlie Holt and Daniel Simmons analyze how the Racketeer Influence and Corrupt Organizations Act (RICO) exacerbates the corrosive impact of Strategic Lawsuits Against Public Participation (SLAPPs) on free speech, as corporations act as surrogates for federal prosecutors to censor critics through baseless criminal lawsuits. The article explains how international and human rights laws impact corporations’ use SLAPPs, shows how current laws can combat this issue, and points to the next steps that need to be taken.

SLAPPs have been increasing rapidly on a global scale, particularly in countries with little to no procedural safeguards or sanctions against abusive legal practices. From India to the Philippines, South Africa, Canada, and the United States, helpless defendants are unable to pay the high legal fees to defend themselves. Of these, Holt and Simmons narrow in on RICO as one of the more aggressive acts passed to suppress advocacy groups’ speech and highlight the dangers of limitless corporate power.

President Nixon signed RICO into law as the Organized Crime Control Act of 1970 to control and subdue organized crime in the U.S. by increasing the severity of sanctions and remedies to considerably high, and arguably unconstitutional, proportions. However, many scholars and politicians were concerned that the vague language in the act (e.g., never mentioning “organized crime”) would allow the act to be abused and used in civil matters as well. Soon enough, their worst fears started becoming a reality.

Over the subsequent decades, cases alleging RICO violations rose exponentially, not for organized crimes but for civil matters. Plaintiffs began to take advantage of the vague language of the act to assert novel claims for treble damages that would coerce legal businesses and natural persons to settle the suits against them because they were stripped of the means to defend their claim.

By the late 80s, RICO was applied for the first time against a group of activists, which would later set a dangerous precedent for protestors and other advocacy groups. An abortion clinic sued anti-abortion activists for violating RICO, alleging extortion for sit-ins, blocking entrances, and trying to gain media attention, among other things. The court ruled in favor of the clinic. Later, two animal rights groups were targeted with claims brought under RICO for extortion and interference with legitimate business practices. Although the named defendants were never criminally charged in the allegations against them and the cases were either settled or dismissed, the results largely favored the plaintiffs.

The keynote case is Chevron v. Donziger, which highlights the pinnacle of what the RICO suit could achieve. When Chevron lost its original suit in Ecuador for contamination from oil production in the region, Chevron retaliated with a RICO suit against the lawyers and advocacy groups involved. Chevron claimed these groups: 1) colluded to pressure Chevron to pay a fraudulent judgment and 2) created a “criminal enterprise” through their advocacy. Chevron was ultimately successful in the suit, and they enjoined their adversaries from enforcing the judgment against them. The lawsuit cost up to $2 billion in legal fees when it could have settled for $140 million.

“The Chevron litigation made RICO’s potential as a weapon against advocacy seductively clear to corporations… [T]he decision certainly did inspire and embolden other companies and industry insiders to try their own luck.”

Chevron’s success emboldened other corporations to try the same RICO tactic against their own adversaries. Drummond Co. Inc. brought a RICO suit after it was originally sued for making millions in payments to a paramilitary group in Colombia. Drummond alleged some lawyers, an advocacy group, and a competitor had a criminal enterprise to extort money. Resolute Forest Products filed a RICO lawsuit against Greenpeace in several countries for extorting money from its targets through “materially false and misleading” claims. It meticulously weaved all Greenpeace entities into one alleged criminal enterprise, amended its allegations to assert tortious conduct in order to stretch the scope of RICO and extend the length of the suit, and evaded state anti-SLAPP laws to keep the suit alive. Energy Transfer Partners hit Greenpeace with another SLAPP suit to further discourage Greenpeace from campaigning, raising funds, and even from continuing operations. Through these suits, corporations bully defendants into staying silent and prevent them from operating.

As SLAPP suits grow globally, international human rights law systems have interceded to protect groups from corporate censorship. The United Nations and Council of Europe responded to the threat by issuing reports warning against the upward trend of SLAPP suits, encouraging states to implement anti-SLAPP legislation, and discouraging corporations from opting for SLAPP suits against advocacy groups. The reports demonstrate that the chilling effect on freedom of expression is so great that the suits must be controlled before they continue to grow globally.

“The heightened threshold for public figures may have some value in blunting the deterrent effect of SLAPP suits by convincing defendants that the prospects of success are sufficient to risk contesting a claim.”

Creating legislation that heightens the threshold to prevail in a SLAPP suit became a widely recognized solution for combating SLAPP suits among international human rights groups. For example, the heightened threshold would apply to suits by public figures on defamation claims because public figures, such as celebrities and politicians, generally open themselves to public criticism and scrutiny and should possess the tolerance to bear it. If the defamatory statements maliciously intended to cause harm and damages are to be awarded, they must be reasonably related and proportional to the public figure’s injured reputation. When larger companies are suing smaller organizations, legal aid should be provided to the smaller organization when necessary to promote procedural fairness. European human rights groups specifically noted that watchdog NGOs should be protected to promote democracy and journalism.

“In the longer term, mechanisms must be developed that allow victims of privatized censorship to hold corporations directly responsible for the failure to respect free speech and assembly rights.”

However, even with these proposals, human rights groups fail to address SLAPP suits’ inherent goal: to deplete the defendant of its resources, which is achieved through the litigation process, not the outcome. Though human rights groups have drafted treaties to buffer the issue, the government is ultimately responsible for cracking down on SLAPP suits at their early stages and sanctioning corporations who file such suits in order to protect victims from procedural abuse and promote their freedom of expression.


Volume 9.1, Issue 2

The Defamation of Foreign State Leaders in Times of Globalized Media and Growing Nationalism

Alexander Heinze

Author Alexander Heinze, one of the appointed experts of the German Ministry of Justice, argued against the abolishment of Article 103 of the German Criminal Code in an op-ed. After angry readers called his views “deranged” and “confused,” Heinze explains his reasons against the abolishment of Article 103 in this article.

In an attempt to pick a fight with Turkey’s president, German Comedian Jan Böhmermann recited a poem on his television program, which translated to “defamatory critique.” Through his recitation, Böhmermann attempted to “educate” his audience about the fine line between acts of speech that are protected and those that are not. Böhmermann’s poem was a response to Erdogan’s reaction to a satirical song that criticized the Turkish president’s treatment of unwelcome journalists and his understanding of freedom of speech. Erdogan made it clear he did not take the criticism lightly. While the German Foreign Office stated that this speech was protected, Böhmermann felt he had to elaborate on the fine line between protected and unprotected speech under German Law and recited the poem on his program.

Under German Criminal Code Article 103, it is a crime to defame the foreign heads of state. Thus, the Turkish government initiated criminal proceedings against the comedian, thereby creating a political crisis since the German government granted the requisite approval for the prosecution. Public outcry caused German Chancellor Merkel to announce the government’s intent to abolish Article 103. Article 103 was abolished as of January 1, 2018.

Article 103 requires the insulted person to be in Germany in an official capacity and that the insult itself be directed at that capacity. The conduct sanctioned includes defamation, malicious gossip, and slander, including value judgments or assertions of fact in the presence of the victim or to a third party. The crux of the case was whether the comedian meant the poem as a joke or an insult. If intended as an insult, then the “mens rea” requirement would be satisfied.

Article 103 had four procedural conditions that were met in the Böhmermann case: 1) existing diplomatic relations, 2) reciprocity where the other state has an existing similar law to Article 103, 3) a request to prosecute, which was made by Erdogan, and 4) authorization to prosecute, which was satisfied when Merkel authorized the investigation against Böhmermann in a press statement dated April 15, 2016. Prior to the Böhmermann case, Article 103 was rarely applied, and not a single conviction had been made based on Article 103. The difference in the other cases and the Böhmermann case that made it more complex was the issue of freedom of speech and of the arts, which is protected by the German constitution.

“To understand why Germany retained – until very recently – a law that criminalized the head of state defamation and to find out whether this is [a] model worth being adopted by other states, a look at the culture of free speech protection in Germany vis-à-vis the U.S. is not only illuminating, but necessary.” [sic] German free speech protection differs from the U.S. Constitution’s first amendment in that “German civil law prohibits and criminalizes the incitement of hatred and attacks on human dignity because of race, religion, ethnic origin, or nationality.” The U.S. constitution does not guarantee the right to dignity, and thus it is valued differently in Germany than in the United States. “Allowing the state to restrict my right to free speech for policy reasons feels less intuitive than for reasons that protect the person I am directing my speech at.”

“Countries have adopted various approaches in the battle against what some have called the ‘fake news epidemic,’ all of which tend to fall into three main categories.”

On January 1, 2018, the German parliament voted to abolish the law based on “an anachronistic, cooperationist understanding of States which even burdens individual citizens with fulfilling the State’s duties.” A suggested reason for why the law was repealed so quickly was Merkel’s fear that Trump would request an investigation on the basis of 103. However, his claim would be unfounded since the elements required to prosecute would not be satisfied. The law requires reciprocity in that the victim’s home state needs to have a law similar to Article 103, and the U.S has no such law.

The author then questions “whether states have an obligation to criminalize attacks on foreign state representatives, and if so, whether the attacks should include defamatory attacks.” Existing treaties that protect the dignity of heads of state require states to protect foreign representatives. However, “the receiving state is merely required to treat foreign state’s representatives “with due respect” and to “take all appropriate steps” to prevent attacks on their dignity,” which can be left open to interpretation. Thus, contracting parties deliberately excluded the obligation to protect dignity from this Convention and, subsequently, no obligation to enact any type of libel law can be derived from it.

Since Germany has no obligation to uphold Article 103 under international treaty law, an obligation may be found under customary international law. “It is widely acknowledged that a constant and uniform state practice and a corresponding opinio juris can lead to the evolution of a customary norm, obliging states to prevent and punish attacks by private individuals upon the person and liberty of foreign heads of state.” Thus, Heinze proceeds with an analysis of existing libel laws and the case law of the European Court of Human Rights.

“It is widely acknowledged that a constant and uniform state practice and a corresponding opinio juris can lead to the evolution of a customary norm, obliging states to prevent and punish attacks by private individuals upon the person and liberty of foreign heads of state.”

While most states have abolished laws that criminalize attacks on the heads of state, they have for the most part retained or restructured laws on dignity protection and thus have no obligation to enact distinct libel laws. Case law of the ECtHR treats these types of laws unfavorably stating, “the offence of insulting a foreign head of state is liable to inhibit freedom of expression without meeting any ‘pressing social need’ capable of justifying such a restriction.”

No obligation is imposed by international law to create laws sanctioning private individuals’ offensive conduct against foreign heads of state, even though many do. While the decision to not criminalize insults of foreign heads of state is not per se wrong, Article 103 was abolished without amending the laws that were impacted by repeal. Separate laws still punish for any attempted attacks on foreign state representatives and for attacks disparaging the German president or state. “National dignity has become a factor of foreign policy.”

“National dignity has become a factor of foreign policy.”

Satirical programming, labeled by Time Magazine, the “John Oliver Effect,” has the power to influence events around the world but can damage the reputation of the foreign state. This case was the beginning of a struggle to balance political will with constitutional rights. An argument can be made that foreign state representatives should be afforded protection against attacks made by private individuals even though no obligation exists under international law. Here, the legislation was swayed by public opinion and fast-tracked, which left inconsistencies in the German Criminal Code.


Volume 9.1, Issue 3

Defamation Law in Russia in the Context of the Council of Europe (CoE) Standards on Media Freedom

Elena Sherstoboeva

“Excessively protective defamation laws have a ‘chilling effect’ on freedom of expression and public discussion.”

To shield politicians and civil servants against criticism and protect their reputations, governments sometimes limit freedom of expression. However, “[e]xcessively protective defamation laws have a ‘chilling effect’ on freedom of expression and public discussion.” In her article Defamation Law in Russia in the Context of the Council of Europe (CoE) Standards on Media Freedom, Elena Sherstoboeva compares the Russian legal regulation of defamation with the legal standards on freedom of expression developed by the Council of Europe (“CoE”). Defamation in Russia is often invoked as a weapon to silence corruption among public officials. Individuals who blatantly disrespect the Russian state or state bodies could be forced to pay hefty fines, with the possibility of jail time for repeat offenders, according to the 2019 amendments to Article 20.1 of the Russian Code of Administrative Offences. More than half of the 5,800 civil lawsuits the Russian high courts consider annually are against journalists and media editorial offices.

Russia is a member of CoE, an intergovernmental organization protecting human rights and democracy, which views freedom of expression as a universal human right and a precondition for democracy. Additionally, “Article 10 Part 1 of the ECHR guarantees everyone the right to freedom of expression. It includes the ‘freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.” The European Court of Human Rights (“ECtHR”) marginally allows CoE member-states to impose limitations on public morality. Still, it strongly confines such limitations with regards to political expressions or information of public interest because such information is crucial for democracy. Further, ECHR accepts a certain degree of exaggeration in media content because it views journalism as a watchdog of democracy that informs societies on issues of public interest and holds governments accountable.

“[T]he ECHR guarantees everyone the right to freedom of expression. It includes the ‘freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.”

The Russian constitutional provisions on free speech are almost completely aligned with the European standards. Although Russian laws do not view freedom of speech as absolute, they do provide strong and detailed protections by banning total censorship and guaranteeing the right to access information, freedom of mass communication, and freedom of thought, speech, and opinion. Additionally, the Russian Supreme Court has declared that in defamation disputes, the lower courts should balance the right to protect a politician’s reputation and a journalist’s freedom of speech by paying particular attention to the legal position of the ECtHR.

“[T]he ECtHR has found that [Russian] courts have failed to find a proper balance between the protection of freedom of expression and other rights.”

In practice, however, “the ECtHR has found that [Russian] courts have failed to find a proper balance between the protection of freedom of expression and other rights.” From the ECtHR’s perspective, Russian courts tend to provide stronger protection for public officials and pro-governmental parties than for private individuals. The ECtHR also found that even if Russian courts do refer to the CoE’s concepts of public interest, such references usually have no effect on courts’ decisions. For example, in Krasulya v. Russia, the ECtHR upheld a violation of the right to free speech when a newspaper editor-in-chief was charged with libel for publishing an article criticizing the local mayor by calling him “loud, ambitious and completely incapable.” The ECtHR reiterated that Article 10 of the ECHR provides a very narrow scope for restricting political discussion on the issue of public interest. The ECtHR ruled for Krasulya, stressing that the press has an essential role in a democracy, and noted that the mayor, as a politician, had to show a greater degree of tolerance to criticism.

An analysis of Russian courts’ general jurisprudence shows that defamation cases are the most numerous among those involving Article 29 of the Constitution on free speech. From 2012 to 2016, twenty-four percent of cases involving the constitutional article on free speech were defamation cases, among which one-fifth were cases against the media. From 2002 to 2006, only six percent of Russian courts’ decisions (seven in total) cited specific judgments of the ECtHR, while from 2012 to 2017, more than half (65) of the decisions directly quoted ECtHR’s rulings.

Although in recent years Russian courts frequently applied the principle of tolerance to the criticism of public officials or politicians, in most cases, quoting the CoE was mainly a formal gesture. Numerous examples exist where the courts did protect public officials, despite referencing the CoE standards, which resulted in decisions that contradicted the ECtHR standards on defamation. By failing to incorporate the ECtHR requirements for journalists to justify unfounded allegations with a certain factual basis, Russian laws highly benefit tabloid journalism, rumors, and fabricated news. According to the author, Russian legislation on defamation requires significant reformation to become on par with the CoE standards.


Volume 9.1, Issue 4

Rethinking Non-Pecuniary Remedies for Defamation: The Case for Court-Ordered Apologies

Wannes Vandenbussche

“Contrary to the conventional wisdom, this article shows that court-ordered apologies are available as a remedy to defamation claims in a non-negligible part of the Western legal tradition.”

In his article Rethinking Non-Pecuniary Remedies for Defamation: The Case for Court-Ordered Apologies, author Wannes Vandenbussche argues that court-ordered apologies as non-pecuniary remedies for defamation should be considered in all Western legal systems because they impose a stigma on defendants, reinforce social norms, and can be balanced by courts to achieve satisfaction.

First, apologies are more than stating, “I’m sorry.” They can impose humiliating social stigmas on defendants, particularly in defamation cases. The 16th and 17th centuries saw two leading legal foundations for defamation remedies: the German Ehrenerklärung, Abbitte oder Wiederruf, and the Roman-Dutch amende honorable, popular in France. Both concepts had the similar goal of restoring the defamed’s honor. Thus, the defamer was punished through self-humiliation. At the defamed plaintiff’s request, courts ordered defendants to publicly apologize by acknowledging their wrongdoing, retracting the defamatory statement, express remorse, and declare the plaintiff a “man of honor.” By the 20th century, Ehrenerklärung and amende honorable fell out of popular use in Germany and France, respectively, but their elements formed the foundation for modern non-pecuniary damages, such as retraction and rectification, in Continental Europe.

In Central and Eastern Europe, “retraction” involves methods including oral and written apologies to remedy defamation. Most Central and Eastern European countries continue to use court-ordered apologies to protect the honor and dignity of their citizens by restoring their good names, but the focus of such apologies is to merely issue the apology, not to affect remorse or humiliation.

Contrarily, mere public apologies are insufficient in the Netherlands, where rectification is supplemented with court-ordered apologies. Dutch law included the amende honorable until 1992, which was later abrogated into the non-pecuniary remedy of declaratory judgment in 2005. Requests for court-ordered apologies have seen a recent increase under article 6:167 of the Dutch Civil Code, which provides for the right to demand rectification of false statements. Dutch courts tend to award plaintiffs’ requests by ordering rectification with private apologies. This recent practice suggests that plaintiffs do receive a moral benefit from court-ordered apologies.

However, moral values require societal implications. A court-ordered apology implies that the apologizer accepts fault and restores the defamed’s self-respect is restored. Modernly, apologies are more prominent in the public sector, such as through news media, social media, political speech, and commercial competition. Broad, public apologies stigmatize defamers by placing the defamed in a position of power, thereby operating as a “chilling effect” to prevent future wrongdoing. Today, theorists define apology as the acknowledgment of wrongdoing, retraction of defamatory words, expression of remorse, and a display of willingness to change future behavior.

Second, future behaviors must align with the community conscious because court-ordered apologies reinforce social norms. Courts are responsible for issuing remedies that tend to reflect and educate important social messages about acceptable behavior, especially for defamation.

In 20th century Central and Eastern Europe, court-ordered apologies promoted socialist and communist ideals. The socialist moral imperative regarding court-ordered apologies stressed that “a plaintiff’s name and reputation can only be cleansed by publishing a rectification and apology.” Simply put, “money should not be used as a pain killer.” Therefore, enforcement of court-ordered apologies, through rectification, served to educate, promote, and validate the moral foundations of communism.

“According to the court, a plaintiff’s name and reputation can only be cleansed by publishing a rectification and apology informing the general public that those suspicions are unfounded and accordingly untrue.”

The moral foundation in South Africa is deeply rooted in the indigenous concept of ubuntu. Ubuntu concerns the balance of humanity, the restoration of dignity, and the sincerity of an apology, much like the amende honorable.Influenced by past Dutch occupation, the amende honorable has become mainstream in South African courts, with the South African Constitutional Court finding that a defamer must acknowledge “his or her inner humanity, the resultant harmony… serv[ing] the good of both the plaintiff and the defendant.” Later clarifying that “it is time for our Roman-Dutch common law to recognize the values of this kind of restorative justice.”

Lastly, courts can balance stigma and social values to achieve “satisfaction.” Effective apologies must factor the delivery method: oral or written, public or private, and duration of public access to apologies. The European Court of Human Rights twice noted that, when framing apology orders, an apology must be neutrally worded and contain no bad faith or lack of diligence on the applicant’s part. Some courts have supplemented apologies with other non-pecuniary remedies in the concept called “satisfaction.” Narrowly construed, satisfaction restores plaintiffs by awarding emotional relief through apologies in addition to monetary damages, similar to reparation.

In Switzerland, a defamation suit against a well-known millionaire resulted in the court ordering a public apology in addition to broad media coverage of the trials. A private apology was insufficient and would not fully restore his ex-girlfriend’s reputation. His defamatory remarks were published on Facebook; therefore, his apology should be published on Facebook. The goal is to remedy the totality of a plaintiff’s harm while preserving the defamer’s freedom of expression, particularly in common law systems.

In the common law, apologies currently bar a plaintiff’s recovery. Instead, an apology could reduce damages without restricting a defendant’s right to speech. Alternatively, settlement negotiations have become the preferred means for resolving disputes in the common law. As leverage in negotiations, apologies would alleviate judicial interference with free speech while restoring plaintiffs.

Ultimately, Vandenbussche argues that all Western Legal systems should consider court-ordered apologies as a supplemental non-pecuniary remedy because apologies impose a stigma on defendants, reinforce social norms, and can be balanced by courts to achieve the plaintiff’s satisfaction.