SEPTEMBER 3 — The term “SLAPP” has increasingly entered the vocabulary of press freedom. Strategic Lawsuits Against Public Participation are a genuine democratic concern.

1. When powerful corporations, governments or wealthy individuals use litigation primarily to intimidate critics, exhaust journalists financially or discourage legitimate public-interest scrutiny, the effect can extend far beyond a single article.
2. It can intimidate journalists from publishing important and critical stories to avoid the risk of being sued by powerful individuals, corporations and the government. That would be detrimental to the crucial role of press freedom as a mechanism of check and balance.
3. However, there is another danger that deserves equal consideration - that the term SLAPP itself becomes so broadly applied that practically any defamation action brought against a journalist is treated as an attack on press freedom, especially when the size of the lawsuit is very large.
4. Therefore, the difficult question is not whether SLAPPs exist, but how do we distinguish a lawsuit intended primarily to silence journalism from one legitimately seeking accountability for allegedly defamatory statements?
5. The recent RM100 million defamation action brought by Malaysian Resources Corporation Berhad (MRCB) and its executive vice-chairperson Tan Sri Salim Fateh Din against veteran journalist P. Gunasegaram provides a useful case through which to examine that question.
6. It is important to say at the outset that the merits of that case are now before the court and press freedom organisations have expressed concern over the magnitude of the RM100 million claim.
7. The Centre for Independent Journalism raised concerns about its possible chilling effect, while the Committee to Protect Journalists subsequently described the lawsuit as excessive and called for its withdrawal.
8. Every right-thinking person would agree that freedom of expression is fundamental to a democratic society. Journalists must be able to investigate powerful individuals, corporations and governments without fear or favour.
9. However, freedom of expression has never meant freedom from responsibility.
10. Indeed, Article 10 of the Federal Constitution guarantees freedom of speech and expression while expressly recognising that Parliament may provide restrictions relating to defamation.
11. The two principles therefore coexist: the right to speak and publish, and the right of another person to protect his reputation.
12. There is nothing inherently contradictory about this.

Human rights protect expression and reputation

1. The Universal Declaration of Human Rights is often cited, correctly, in defence of freedom of expression.
2. Article 19 recognises the right to freedom of opinion and expression, including the freedom to seek, receive and impart information and ideas. But that is not the only relevant provision.
3. Article 12 of the same Declaration provides that no person should be subjected to arbitrary interference with privacy or to attacks upon his honour and reputation, and recognises the right to protection of the law against such attacks.
4. The very international framework frequently invoked in defence of journalists recognises that freedom of expression exists alongside the protection of honour and reputation.
5. The International Covenant on Civil and Political Rights, or ICCPR, makes the balance even clearer. Malaysia is not a party to the ICCPR, they are nevertheless highly relevant as internationally recognised human-rights principles.
6. Article 17 of the ICCPR protects individuals against unlawful attacks upon their honour and reputation. Article 19 protects freedom of opinion and expression.
7. But Article 19 itself also recognises that the exercise of freedom of expression carries “special duties and responsibilities”, and that restrictions may be imposed where necessary for, among other purposes, respecting the rights or reputations of others.
8. That is a crucial point in the present debate. One should note that international human-rights principles do not establish a hierarchy in which freedom of expression automatically extinguishes the right to reputation.
9. They demand a balance. A defamation lawsuit therefore does not become an infringement of human rights merely because a journalist is the defendant.
10. The appropriate question is whether the legal process is being used legitimately and proportionately to protect reputation, or whether it is being abused primarily to suppress legitimate public-interest speech. Those are two very different propositions.
11. There is another principle that seems to have vanished from this debate: a journalist must be prepared to stand by his journalism. Whether a suit seeks RM10, RM100,000 or RM100 million does not determine whether an allegation is more or less true.
12. Truth does not change according to ringgit and cents. If a journalist has investigated a matter carefully, obtained credible information, verified the relevant facts and formed conclusions he can reasonably defend, then the size of a claim does not suddenly make those facts shaky or untrue.
13. He should defend them. That is especially so where the allegations are very serious in nature.
14. According to reports on the present action, MRCB and Salim contend that Gunasegaram’s article conveyed, among other things, allegations that the LRT3 project had been secured through political patronage and that political connections had been used to obtain commercial advantage.
15. These are not trivial observations, nor whimsical allegations. They are serious assertions capable of affecting the reputation of a publicly listed company and individuals associated with it.
16. If there is evidence supporting those assertions, journalism should not retreat from them. Present the evidence. Defend the analysis, and explain how the conclusions were reached.
17. That is what courageous journalism should look like. Conversely, if an allegation cannot withstand examination once challenged, then we should ask whether the problem lies with the challenge or with the original allegation.
18. This is why describing a defamation action as an attack on journalism merely because a journalist is being sued is problematic. The courts do not automatically silence the journalist.
19. It provides both sides with a forum. The plaintiff must establish his case and the defendant can contest the alleged defamatory statements and raise whatever defences are available under the law.
20. Evidence can be examined, assertions tested and competing accounts scrutinised. That is due legal process.
21. There is certainly a legitimate international debate about SLAPP. Powerful parties should never weaponise litigation merely to bankrupt critics, intimidate investigators or suppress legitimate public-interest scrutiny.
22. But the label “SLAPP” should itself be applied responsibly.
23. Otherwise, we risk creating another undesirable principle, that once an accusation is published under the banner of journalism or public interest, the subject of that accusation should somehow be discouraged from seeking judicial redress.
24. That cannot be right either. A recent, separate MRCB case illustrates why that distinction matters.
25. On August 18, the Shah Alam High Court ordered blogger Murray Hunter to pay MRCB RM50,000 in damages, together with RM10,000 in costs, over articles concerning the Shah Alam Stadium redevelopment.
26. Media reports of the decision stated that the court found the information had not been verified before publication and had subsequently not been corrected. That case should not affect the proceedings against Gunasegaram.
27. The facts, defendants and circumstances are different, and the Gunasegaram case remains to be determined.
28. But it illustrates the point that not every legal challenge to published material can automatically be characterised as an attempt to silence press freedom.
29. Sometimes the central issue really is whether what was published met the evidential standards required of serious allegations.

Reputation also worth protecting

1. CIJ is correct to defend press freedom. But civil society should be equally careful not to create the impression that protecting one’s reputation is somehow incompatible with democracy.
2. Reputation matters. For an individual, reputation may represent decades of professional and personal credibility. For a listed corporation, allegations of cronyism, political patronage or improper procurement can affect shareholders, employees, business relationships and public confidence.
3. The right to ask difficult questions must therefore coexist with the right to challenge allegedly false answers. This is particularly relevant to journalism.
4. “The pen is mightier than the sword.” Journalists possess considerable power. A published allegation can travel across the country in minutes and remain searchable for years.
5. An accusation appearing under the authority of an established journalist can acquire credibility merely because it has been published. That power demands discipline.
6. Independent journalism should never mean unaccountable journalism. CIJ understandably wants to protect journalists from intimidation. That is an important responsibility.
7. But perhaps organisations defending journalism should go further. They should defend rigorous journalism.
8. They should defend journalists who investigate fearlessly, verify meticulously, distinguish fact from inference, give affected parties a reasonable opportunity to respond, correct genuine mistakes and, most importantly, stand behind what they publish when challenged.
9. The standard cannot be that journalists should be fearless when making allegations but fearful when asked to establish their basis.
10. Finally, every nation needs courageous journalists. We need journalists prepared to investigate political patronage, corruption, corporate misconduct, abuse of power and failures of governance.
11. But we also need journalists whose work can survive scrutiny. A democracy is not strengthened when allegations are repeated simply because they are sensational.
12. Nation-building cannot rest upon conjecture masquerading as fact. It must rest upon evidence. A journalist who has the facts should not have to tremble merely because those facts are challenged in court.
13. He should be able to say: “this is what I wrote, this is why I wrote it, and this is the evidence upon which I relied upon”.
14. That, surely, is the journalism we should defend. Press freedom is not weakened by accountability, it is strengthened by it.

* Professor Datuk Dr Kassim Noor Mohamed is a criminologist.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.