Journalist Evan Gershkovich is the latest victim of a new war on media freedom. Arrested and charged with espionage in Russia whilst on a reporting trip, the Wall Street Journal correspondent is being held in solitary confinement. He could face 20 years in jail.
That a free press in Putin’s Russia is all but extinct is well-documented. More than two dozen journalists have been killed there since 2003. But what is new here is the precise method of attack. Russian journalists have long experienced legal harassment. But Gershkovich, an American, is the first Western journalist to be arrested on espionage charges in Russia since 1986.
Journalists who hold power to account are increasingly making enemies of the powerful. From surveillance and coercion to physical violence and online abuse – the methods of extinguishing unwanted truth-telling have evolved. And lately, a new weapon has been added to this arsenal of tools: the law.
Once used for protection, now abused for persecution, the law is being hijacked by powerful individuals, organizations and governments to criminalize media practitioners and muzzle free speech. These legal attacks are not just the domain of autocratic regimes; weaponization of the law is happening all over the world, including in leading democracies. According to the Committee to Protect Journalists, a record 363 reporters were imprisoned globally in connection with their work in 2022 – an increase of 20% on the previous year.
The legal tactics used to ensnare and cripple journalists are many and varied. They range from the introduction of new legislation under the guise of national security interests, to the use of multiple lawsuits that threaten those targeted with financial ruin.
Amongst the most prominent legal threats to journalists is the surging abuse of both civil and criminal defamation laws. Legitimately used to protect an individual’s reputation from false statements, defamation laws and the disproportionate penalties they can carry are now being used to shield powerful individuals – particularly public figures – from criticism.
In the last five years, an alarming number of countries have introduced or amended laws to silence a free press. According to UNESCO, at least 160 currently have criminal defamation laws – used to threaten journalists with arrest, detention, expensive trials, fines and imprisonment, should their scrutiny stray into uncomfortable territory.
From Cuba’s new criminal code, approved by the Legislative Assembly in 2022, to, Japan’s heightened penalties for defamation – with fines of up to 300,000 yen (USD$2,220) and a one-year prison sentence for “online insults” – journalists are being criminalized under the guise of ‘libel’, ‘slander’, ‘insult’ or ‘injury’.
In December last year, Indonesia outlawed insulting the president or vice president in a new criminal code that has been widely criticized by human rights organizations for its impact on free speech. Between 2017 and 2019 in Azerbaijan, journalists, bloggers, media workers and media editorial staff were charged 72 times with libel, insult, and reputational damage. Meanwhile in Brazil, businessman Luciano Hang, owner of the Havan retail chain, has filed at least 37 lawsuits, many alleging defamation, against journalists and media organizations that exposed his close ties to the former Bolsonaro administration. He is seeking compensation for more than $1.2 million.
These claims can be just as steep in civil defamation cases. While they can be used to uphold rigorous journalistic standards, create accountability and protect reputations – as with the recent lawsuit brought against Fox News by Dominion Voting Systems that resulted in a staggering $787.5 million settlement – such laws are being routinely and widely abused. Journalists and media organizations have faced wildly inflated damage claims in attempts to derail investigative journalism. Former US Congressman Devin Nunes, for example, sued CNN for $435 million over an article published in 2019 that alleged he had met with a former Ukrainian official in Austria in a bid to uncover damaging information on then-Democratic presidential candidate Joe Biden. The suit was thrown out in February 2021.
Left unchecked, defamation laws, both criminal and civil, will continue to be used all over the world to suppress scrutiny and to prevent open public debate.
The surging use of legal tactics to silence journalists has disastrous consequences for citizens and society.
The first problem is that journalists themselves are often unaware of this complex legal quagmire, or the specialist advice they’d need to extricate themselves from it. Moreover, the resources they’d need to mount their defense are often entirely out of reach.
Secondly, there is a growing need for greater legal expertise to protect media practitioners and combat the increasing array of traditional and non-traditional threats they face.
Thirdly, legal warfare waged against journalists turns the accuser into the accused. When a journalist faces a criminal charge, their own reputation is damaged, fueling even greater distrust between them and the audience they serve.
As long as this issue is only discussed in distinct circles, journalists will continue to be targeted with impunity. Widespread understanding of the nature of these risks, the support available – and the gaps in this support – is critical to protecting free media, the cornerstone of democracy.
This is why the Thomson Reuters Foundation has partnered with the Tow Centre for Digital Journalism at Columbia Journalism School to produce a report that identifies and examines the world’s leading legal threats to the profession.
The report is the first of its kind to bring together global research, contributions from media freedom experts all over the world, and the first-hand experience of nearly 500 journalists. It provides a critical step towards a holistic, global overview of the weaponization of the law against journalists and a springboard into future research.
But more than that, it is a call to arms to prioritize the safeguarding of journalists, to protect free media and preserve democracy.
Collectively, we have a duty to halt the democratic deficit driven by bankrupting journalists, threatening their liberty – and in doing so – extinguishing free speech.
Antonio Zappulla is CEO of the Thomson Reuters Foundation
Joel Simon is Founding Director of the Craig Newmark Graduate School of Journalism at City University New York
