Croatia and Italy, the chilling effect of strategic lawsuits

Forced to waste time, energy, and money to defend themselves against lawsuits that are unfounded in almost 90% of cases, journalists in Italy and Croatia are well aware of the SLAPP phenomenon (strategic lawsuit against public participation). Expert talks in Europe and a promising journalist's bill in Italy

Hrvoje Zovko, president of the Association of Croatian Journalists (HND), will have to go back to court in a few days. Last January, he had reported of “over 1,000 ongoing trials against Croatian journalists or media outlets". Zovko is also being sued for slander  by his former employer, public television HRT, that fired him in September 2018.

Hrvoje Zovko discovered it last September 17^th, when he was notified of the invitation to appear as a defendant on October 31^st at the Zagreb Criminal Court. He did not know of the trial. "In Croatia, it's open season on journalists", he had told us a few days earlier, commenting on the increase in attacks against journalists.

The first of the three lawsuits by his former employer dates back to December 2018, when HRT claimed damages for 10,800 kuna (about 1,450 Euros). A few days later, Zovko was notified of another lawsuit, for alleged damages to honour and reputation, amounting to 250,000 kuna (over 33,000 Euros), plus interests.

Once fired, three times sued. In this third case, for slander – a charge used by public television to sue 36 between media outlets and journalists, including its own employees, over the last two years.

The abuse of defamation lawsuits, which leads to the so-called reckless or vexatious or gag lawsuits, is a phenomenon that in the case of Croatia, but not only, has caused the intervention of the Council of Europe  which opened an alert procedure on the Platform for the protection of journalism and journalists' security.

With just over 88 cases out of 100 ruled in favour of journalists, it can be deduced that most complaints were, in fact, specious, especially since – words by the Croatian Ministry of Culture – "most of the cases are presented by a civil party and those who feel affected ask for compensation".

A legitimate persecution which, by wasting journalists' time and money and energy, has the sole purpose of intimidating them and making them give up. In the US, this was classified and described as early as 1989 as SLAPP, strategic lawsuit against public participation. A lawsuit that, masquerading as a lawsuit for defamation or moral damage or violation of privacy or reputation or else, pursues a single goal: to hinder freedom of expression.

The media body guard

To defend media freedom, as Antonella Napoli – journalist and international affairs analyst, chief editor of online magazine Focus on Africa , and formerly an international observer in several trials against Turkish journalists – told us, it is important that colleagues are not left alone.

"With Article 21 and the Italian National Press Federation – she explained – we launched what we called the media body guard: when a colleague is under attack, we try to develop a support network around him/her”.

In the case of journalists targeted by spurious lawsuits – in Italy, thousands of cases every year – the support of colleagues and the media world is crucial.

"Solidarity consists in the fact that we re-publish that investigation and continue to follow the story. Because those who are targeted by meritless lawsuits are often delegitimised, and therefore the only way to ensure that the colleague is not isolated is to relaunch their work, to disseminate their investigations, not to leave them alone”.

The media body guard is even more important in the case of freelancers, who do not have a publisher or outlet to pay their damages: they have to face the long and costly procedure of civil cases, which usually takes no less than 2 to 6 years.

On precarity as a factor of weakness, Antonella Napoli is determined: "I represent a type of journalism now unfortunately increasingly rampant, i.e. the precarious journalist: as a freelance, I work on a topic and then I pitch it. As a woman, it is even more complicated. I had a contract for 20 years, but now I work for various outlets and even compensation is much lower than a few years ago. But at least I don't get paid 15, or 10, or even 8 Euros per piece. This needs to be stressed, because in Italy there are people who are paid that little”.

Antonella Napoli has been shortlisted for the Pulitzer Prize for one of her reports, and is now under so-called "radio-controlled dynamic surveillance" after receiving threats by the Muslim Brotherhood for her investigations in Sudan and also in Egypt, from where she has recently returned. But she still speaks for her voiceless colleagues.

"In the early stages of my journalistic life, around the age of twenty, when I was in the news, I followed a case of clandestine abortions, a case that involved the then president of the TAR of Salerno. I wrote that with a service car he had brought a lover to abort in the studio of his best friend, a gynecologist who provided clandestine abortions. At some point, this gentleman sued me and since then, since 1998, I have been saddled by this lawsuits. In the first phase, in criminal proceedings, the case was archived. But he couldn't have it and he sued me for damages, so the case continued in civil proceedings. And it didn't end there. At his death, the family took on this proceeding in civil proceedings, so the case goes ahead and, since the newspaper for which I wrote this report failed, I was left alone to pay. I have lived for 20 years with this sword of Damocles on my head, simply because I exercised my right to report. The next hearing is in 2022!".

In the Senate, the Di Nicola bill

Tens of thousands of journalists are held hostage by spurious complaints in Europe, over a thousand in Croatia, certainly over 5,000 in Italy. And the attacks do not always and only come from politicians. Antonella Napoli explains: "There is a lot of crime, there are the famous white-collar workers, anyone can file a lawsuit: all you need is a lawyer, and if you are friends with one you don't even pay. Unfortunately, it is a widespread practice".

A practice that Italian journalists are familiar with, so over the years attempts have been made to come up with solutions, at least to find a deterrent for such abuse of the law.

"We must tighten up the rules – argues Antonella – and one of the proposals made also on our indication as Article 21 and the FNSI's is this: do you file a meritless lawsuit against me? A gag lawsuit to try to block a journalist's work? You sue me for 100,000 Euros? Then, if you lose in court, you will pay not only the expenses, but also 50% of what you claimed. Then we'll see if they dare. In the Senate, Primo Di Nicola gathered the analyses and suggestions of the journalists' union to arrive at a bill".

The proposal by 5 Star Movement MP and long-time journalist for Espresso Primo Di Nicola is currently under consideration. According to the proposal, Article 96 of the Code of Civil Procedure would be accompanied by the provision of the so-called “civil aggravated liability", to sanction the bad faith of those who abuse the instrument of the lawsuit for other aims.

"The texts – adds Antonella Napoli – are based on the indications that the union has advanced for a long time, so even just discouraging reckless complaints would be great. Then, if someone wants to sue you, they will; but if they know they have no real ground to prove defamation, and they risk paying half of what they claimed, they'll think twice. It would be a deterrent”.

The conditional is no coincidence, given that the possibility of mending what the National Council of Journalists has called "a democratic emergency" is not so concrete.

"Sincerely? I am not particularly optimistic, I am waiting to see concretely what is proposed by the majority. The Undersecretary for Publishing should present in Parliament in the coming days to illustrate the guidelines. We'll see…".