#IFJ Blog: SLAPPs conference tickles up hope

Index on Censorship's event in Dublin, Ireland, brought together lawyers, journalists and victims of legal bullying to discuss the implementation of the EU's Anti-SLAPP directive, deformation law reform in Ireland and the campaign to free journalists from judicial interference.

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Bobbie-Leigh Herdman, barrister, who represented Malachi O'Doherty

Malachi O'Doherty is an improbable poster boy. Diminutive, bearded and in his mid-seventies, the veteran Northern Irish journalist's resistance of a politician's legal bullying won him acclaim anew. Finding for O'Doherty, a judge determined that the claim against him was: "scandalous, frivolous and vexatious".

It is a landmark ruling that has immediate beneficial implications for several similar ongoing cases. Among the community of activists across the Europe who campaign against SLAPPs (strategic lawsuits to prevent public participation) his victory sparked celebration.

O'Doherty, and his lawyer, were star attractions at Index On Censorship's Anti SLAPP 2024 conference, held at the Royal Irish Academy in Dublin. The event heard from victims of legal bullying, lawyers, politicians, and campaigners. And welcome though the Northern Irish victory is, significant reform is clearly required if journalists are to be less often gagged by the law.

Who pulled the trigger?

O'Doherty's case arose from two radio interviews. In both, he suggested that Gerry Kelly, a Sinn Féin member of the Northern Irish Assembly, had shot a prison officer in the head during a mass break out from the Maze prison in 1983. This was not the controversial claim it sounds. Kelly is widely known to have been a member of the Provisional Irish Republican Army, during 'the troubles' and served prison sentences for setting bombs.

Kelly himself has written candid books about his early life. He kept shtoom, however, about whether he or another IRA prisoner actually pulled the trigger on the prison guard. The victim, who survived the bullet, has long maintained that Kelly wielded the gun. When Kelly challenged O'Doherty in court, the judge found that whoever actually discharged the firearm, Kelly was a 'joint tortfeasor' - which is to say was at very least jointly responsible for the shooting. On this basis, the republican's case against the journalist was dismissed.

Bobbie-Leigh Herdman represented O'Doherty in in court. She told the conference: "the proceedings were clearly not a genuine attempt to pursue litigation but a SLAPP - an attempt to silence, brought for an improper basis. The judge awarded costs against Kelly, so the case has created a pause for anyone else thinking of acting in this way."

Encouraging as the judgement is, O'Doherty spoke of the strain he faced. "The action was against me personally, not the radio stations, so I had to ask my wife if she was happy that we risked our home to defend what I said - that's a big ask".

Ireland promises reform

Fortunately there has, in recent years, been a growing tide of opposition to SLAPPs. Helen McEntee, currently the Republic of Ireland's Minister for Justice, told the conference: "Dealing with SLAPPSs is a priority for the Government. We have a Defamation Amendment Bill at the second stage, and we want legislation to allow for the early identification of SLAPPs."

An imminent election in Ireland makes it is unclear who will be delivering this agenda six months hence. Whether legislative proposals will effectively deal with the issue remains to be seen.

In the meantime, there were plenty of examples of legal devices designed to suppress legitimate stories. Mark Tighe, for example, a reporter with Ireland's Sunday Independent, described breaking the story of a prominent Irish comedian accused of sexually assaulted a teenager. As Tighe prepared for publication, the comedian't lawyer threatened an injunction and a defamation claim. "If you get a story like that wrong, you are talking about €2 million in the courts - but of course the legal actions never happened," said Tighe.

Every publication - a calculated risk

Conor Graham, who runs the Merion Press in County Kildare, described finding legal letters on his doorstep with numbing regularity. "It is a huge challenge to me and my company and causes great stress", he said. "I have tried to get insurance, and can't, I can't afford a full legal reading of every 100,000 word manuscript. We fly by the seat of our pants - every publication is a calculated risk".

Such challenges should become fewer in coming years as a result of the Anti SLAPPs Directive recently adopted by the European Union. It requires member states to adopt laws allowing for the early dismissal of SLAPPs, awarding of costs against those who perpetrate legal harassment, as well as penalties for egregious offenders. EU member states must have laws in place by May 2026. Several speakers at the conference worried, however, that Ireland might not meet this deadline.

Maltese vindication sparked EU initiative

Francesca Farrington, a member of the Anti-SLAPP research hub at Aberdeen University, traced the impulse for the Directive to the 2017 murder of Maltese journalist Daphne Caruana Galizia. A relentless chronicler of corruption, at the time of Caruana Galicia's death, she faced 47 outstanding legal cases.

"Daphne was posthumously vindicated when the bank she was investigating was closed down and its chairman arrested on money laundering charges", said Farrington. "Her death sparked a movement within the EU to deal with the issue - although the Commission had to be persuaded that it had the competence, and could create a Directive adaptable to very different legal frameworks".

Dead letter warning

Associate professor of law at Trinity College Dublin, Eoin O'Dell was pessimistic about the prospects of legal revision in Ireland. Speaking about the putative reform of defamation law, he warned that "implementation is likely to be so partial that it will be a legislative dead letter".

The same is potentially true of much of the EU's promised Anti SLAPP laws. Scrutinising implementation of the directive will require much time and effort across member states.

Sadly for O'Doherty, in Northern Ireland (with the rest of the UK now outside the EU), this Directive will be no help. But perhaps his case demonstrates something else? Campaigning to tip the law to inhibit SLAPPs is vital. Whatever ends up on Europe's statute books, however, the bravery, tenacity, and determination demonstrated by O'Doherty is always likely required by journalists bringing important stories to light. As an exemplar of those qualities, his case deserves its moment in the sun.

Tim Dawson is the deputy general secretary of the International Federation of Journalists

There is a set of pictures of the event here https://www.flickr.com/photos/73968455@N06/albums/72177720321595216/

Published

06 November 2024

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