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How abusive lawsuits block accountability – and what we can do to fight back

Article by Charlie Holt

February 24, 2021

How abusive lawsuits block accountability – and what we can do to fight back

Jimmy Savile was first reported to the police in the 1980s.

 

Harvey Weinstein’s first alleged act of rape was in 1993.

 

Lance Armstrong faced his first doping allegations in 1998.

 

It would be comforting to conclude from the above that we’ve got better over time at holding the powerful to account. That journalists have got more incisive, activists have got more organised, whistleblowers have got more discrete.

 

The painful reality, however, is that it can take decades to hold the rich and powerful to account, even when evidence is plentiful and the crimes in question are considered “open secrets”.[1]

 

The many victims of benighted “national treasure” Jimmy Savile, of course, were still awaiting accountability when his 7ft gold coffin was being lowered into the ground in November 2011.[2] A lot has been written about how Savile was able to block efforts throughout his life to expose him: his cosy relationship with the political establishment, the seductive power of his celebrity, or his ability to “hide in plain sight”.[3] Those who knew Saville best, however, attribute his ability to evade accountability to a more traditional psychological barrier: fear.

 

As a former semi-pro wrestler, Jimmy Savile knew a thing or two about inspiring fear in people. As a transcript of a 2009 police interview makes clear, however, Savile didn’t need to rely on his physical presence to intimidate his critics into silence.[4] In the interview, Savile spoke about his “policy” towards those who accused him of sexual abuse: to respond to the allegations with lawsuits. Savile boasted that he had threatened newspapers which had published accusations against him “and not one of them wanted to finish up in court with me so they all settled out of court”. As Savile noted, very few cases actually ever made it to court; most of the time all it took was a legal threat for his accusers to “run away and say ‘shush pay him up’”.

 

What Savile was describing was something we would now recognise as Strategic Lawsuits Against Public Participation (SLAPPs): abusive lawsuits designed to shut down critical speech. Chances are you’ve never heard of a SLAPP, but you’ll almost certainly be familiar with the way they operate. If you’ve ever watched a documentary, listened to a podcast, or read an essay on large-scale institutional abuse – and the subsequent efforts to expose that abuse – then you’ll recognise the part of the story in which the abuser uses lawsuits to block accountability. It might be the NXIVM cult, the Paradise Papers, child sexual abuse by Catholic priests, or Scientology (L. Ron Hubbard himself once advised that “the law can be used very easily to harass, and enough harassment on somebody… will generally be sufficient to cause his professional decease”).[5] It might be a sexual predator such as Weinstein or a serial cheat such as Armstrong, both of whom used legal threats and lawsuits to block reporting on their wrongdoing (the Sunday Times, which had first raised questions about Armstrong’s performance in 1999, recovered a £300,000 settlement he had taken from the paper in 2004 after Armstrong publicly admitted to doping in 2013).[6]

 

Whatever abuse of power you choose to look at, the same rule holds true: its exposure is generally preceded by years – and sometimes decades – of legal intimidation.

 

Of course, most people accept that public participation is an indispensable component of any functioning democracy. How then are those who use SLAPP able to get away with these tactics?

 

There are three main reasons for the enduring success of SLAPPs, a full understanding of which can help inform the way we respond and build resilience to their use.

 

First of all, few people know what a ‘SLAPP’ is. When hearing about a civil lawsuit targeting acts of public participation, most people are therefore unlikely to associate this with human rights. In fact, if we’re being honest, they’re most likely to hear the words ‘civil lawsuit’ and switch off altogether. Without an understanding of the implications of SLAPPs on free speech and assembly rights, it is easy for SLAPP filers to frame their legal attack as a bog-standard civil dispute between two ideologically opposing parties.

 

Second of all, as Savile himself said in the quote above – most of the time, SLAPP filers never actually have to go to court. SLAPPs work by exploiting the imbalance of power between the plaintiff and the defendant. Most of those targeted don’t have the resources, the time, or the legal knowledge to fight off the legal attack. More often than not, therefore, the SLAPP victim will retract the criticism and issue an apology before the matter ever reaches court.

 

Third of all, SLAPP filers will often take steps to marginalise and discredit their target. Large-scale legal assaults on public watchdogs are frequently accompanied by PR offensives designed to undermine the credibility of the victim. In doing so, the SLAPP filer can attack their target without fear of public backlash. It’s one thing for a corporation to sue an activist or a journalist, for example – it’s quite another thing to sue an ecoterrorist or a propagator of fake news.

 

If SLAPPs work by isolating the target, however, there’s a straightforward way they can be countered: by building solidarity across civil society. By responding vigorously to the use of SLAPPs against public watchdogs, irrespective of who’s being targeted, NGOs and media organisations can make it clear that such efforts to divide and fragment civil society will not be possible. In the process, civil society groups can work together to address the other two factors underpinning the success of SLAPPs: they can raise awareness of SLAPPs, thereby stripping away the façade of legitimacy the legal process can create, and they can embolden recipients of legal threats to take a stand and resist efforts to bully them into silence.

 

That’s why anti-SLAPP coalitions have emerged in the USA, France, South Africa – and now continental Europe. In the USA, the Protect the Protest coalition appropriated the old NATO slogan, “an attack on one is an attack on all”, to signal the willingness of coalition members to take action when another coalition member is attacked. We have shamelessly used the same slogan on the front page of our new European coalition website, which will be launched in an online event on 26 March.

 

Around the world the fortunes of legal bullies are declining in the face of the ever-strengthening solidarity of civil society. If you would like to join the fight, or if you have yourself been victimised by these legal intimidation tactics, the Coalition Against SLAPPs in Europe (CASE) would love to hear from you.

 

The Coalition Against SLAPPs in Europe (CASE), a new anti-SLAPP website, has now been launched. You can access it here.

 

Charlie Holt is Legal Counsel for Campaigns at Greenpeace International (GPI). He advises on legal strategy to advance Greenpeace campaign goals and leads the development of GPI’s anti-SLAPP strategy, with a particular focus on SLAPP resilience in the USA and Europe. Greenpeace International is one of over 25 organisations that have formed the Coalition Against SLAPPs in Europe (CASE). Amongst other initiatives, the coalition’s members have drafted a proposed an EU Anti-SLAPP Directive, which was published in December 2020.

 

[1] Jimmy Savile’s behaviour was ‘open secret’ as early as 1973, The Irish Times, February 2015, https://www.irishtimes.com/news/world/uk/jimmy-savile-s-behaviour-was-open-secret-as-early-as-1973-1.2118376#:~:text=Evidence%20from%20Savile’s%20victims%20at,monitoring%20or%20supervision%20in%20place%E2%80%9D

[2] David Gilbert, Jimmy Saville: National treasure in life, reviled ‘sex abuser’ in death, CNN, January 2013, https://edition.cnn.com/2012/10/23/world/europe/jimmy-savile-profile/index.html

[3] Saville used his celebrity to ‘hide in plain sight’, itv News, January 2013, https://www.itv.com/news/update/2013-01-11/savile-used-celebrity-to-hide-in-plain-sight/#:~:text=A%20senior%20police%20officer%20today,a%20scale%20never%20seen%20before.

[4] Ben Quinn, Jimmy Saville: transcripts reveals ‘policy’ used to halt abuse claims, The Guardian, October 2013, https://www.theguardian.com/media/2013/oct/15/jimmy-savile-boasted-police-abuse

[5] Sarah Berman, What It’s Like to Be Surveilled and Sued by MXIVM, Vice, June 2019, https://www.vice.com/en/article/j5wk88/what-its-like-to-be-surveilled-and-sued-by-nxivm; Business & Human Rights Resources Centre, Appleby lawsuit against BBC & The Guardian (re Paradise Papers), September 2018, https://www.business-humanrights.org/en/appleby-lawsuit-against-bbc-the-guardian-re-paradise-papers; Deena Yellin, ‘I felt abaonded’: Catholic priests turn to defamation lawsuits to fight sex abuse claims, northjersey.com, February 2021, https://eu.northjersey.com/story/news/local/2021/02/09/catholic-priests-turn-defamation-lawsuits-fight-sex-abuse-claims/4163290001/; Edward Helmore, TV ‘exposure’ of Scientology halted by UK libel law split, The Guardian, April 2015, https://www.theguardian.com/world/2015/apr/18/scientology-tv-exposure-halted-uk-libel-law-split-going-clear; Hugh B. Urban, The Church of Scientology: A History of a New Religion, Princeton University Press, 2011, https://bit.ly/2MdGVfU

[6] Reuters Staff, Harvey Weinstein threatens to sue New York Times over harassment story, Reuters, October 2017, https://www.reuters.com/article/us-people-harvey-weinstein-idUKKBN1CA2JX; Lance Armstrong ‘agrees Sunday Times settlement’, BBC Sport, August 2013, https://www.bbc.com/sport/cycling/23830777; Richard Sandomir, Armstrong is suing accuser, New York Times, June 2004, https://www.nytimes.com/2004/06/16/sports/cycling-armstrong-is-suing-accuser.html

 

This article was produced as part of the Unsafe for Scrutiny project, which is kindly funded by the Justice for Journalists Foundation.

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