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SLAPP Lawsuits: Power vs. pen

BARIŞ ALTINTAŞ ve gökçer tahincioğlu

Strategic Lawsuits Against Public Participation, or SLAPPs for short, are increasingly used in different parts of the world against authors, activists, and journalists.

SLAPPs are defined as judicial processes that are initiated to hinder disclosure of information, dissemination of which is in the public interest but can potentially damage a government or a company’s reputation. As it is also the case in the West, SLAPPs are often brought up on charges of defamation and slander.

The main purpose of these lawsuits is to intimidate and punish journalists and rights defenders and deter them from criticizing those in power through forcing them to spend time and energy on the litigation processes and through the resulting sentences and fines.

This type of lawsuit is typically characterized by plaintiffs who possess large financial resources, and defendants who lack such resources. To give an example, Maltese journalist Daphne Caruana Galizia, who was assassinated in 2017, stood trial in 47 criminal and civil cases in Malta and other countries at the time of her assassination.

Deteriorating judicial freedom and SLAPP lawsuits in Turkey

With countless investigations, detentions, and lawsuits, the judiciary is among the most frequently used tools against journalists also in Turkey: Turkey ranks 153rd among 180 countries in the 2021 World Press Freedom Index of Reporters Without Borders (RSF). According to the organization, “Even if Turkey is no longer the world’s biggest jailer of journalists, the risk of imprisonment and the fear of being subjected to judicial control or stripped of one’s passport is ever-present.”

Among the institutions criticizing the functioning of the judiciary in Turkey is the Venice Commission, whose main task is to advise the Council of Europe on legal issues. In its report on the duties and functioning of the criminal judgeships of peace, which is a special court responsible for making decisions during investigation processes, the Commission emphasized that many concerns arise when the judicial powers of these judges and how they make use of them are closely examined.

The Commission also recommended abolishing the charge of “insulting the president”, which is described as a criminal offense under Article 299 of the Turkish Penal Code and has been widely used against journalists since 2016. In 2021, the European Court of Human Rights (ECtHR) reiterated this request in a decision on the issue. Many legal experts and human rights defenders believe that the judiciary is being weaponized against oppositional voices and journalists.

However, perhaps the most important sign that the judiciary in Turkey has moved away from being independent and from the principles of rule of law are the cases of business person Osman Kavala and politician Selahattin Demirtaş. They are being insistently held in pre-trial detention in separate cases for a very long time, despite the ruling of the ECtHR which found that their detention had political motivations other than those prescribed by the Convention and despite warnings by the Council of Europe’s Committee of Ministers.

The state of emergency and the special judicial regime that were both introduced after the coup attempt in 2016 can be said to be the continuation of a number of previously completed milestones. Gökçer Tahincioğlu’s report “Media Under Siege”, which he prepared for PEN Norway, lists some examples of this:

  • The changes made to judicial institutions with the constitutional amendments adopted on September 12, 2010,
  • The abolishment of special authorized courts of justice and establishment of Criminal Judgeships of Peace following an investigation carried out against ministers of the Justice and Development Party (AKP) between December 17-25, 2013.

Shifting red lines and journalism

Though in some countries SLAPP lawsuits may not go beyond just legal harassment because of the legal system of that country, in Turkey, after the developments mentioned above SLAPPs may result in punishments for journalists, activists, and those who seek to speak and disseminate the truth in society.

Associate Professor Ceren Sözeri who specializes in media ownership and press freedom recalls the lawsuit brought up after a 2015 article published in Cumhuriyet daily and which reported on the claims that Turkey had sent weapons to armed groups in Syria as an example of a SLAPP lawsuit in the global sense. According to Sözeri, especially after the failed coup attempt in 2016, the matters which concern “the security of the state” have begun to be considered in this regard.

It can be argued that there are some red lines, especially on matters concerning military security in Turkey when it comes to journalism and crossing of which will not be tolerated by the judiciary since the foundation of the Republic. For example, writing news and articles about the Kurdish issue or the “1915-1916 Armenian Genocide” has been historically “undesirable” in Turkey except for the period between 2013 and 2015, during which the PKK and Turkey conducted peace negotiations as part of the so-called “Solution Process.”

As a result of the recent weaponization of the judiciary against journalists and the opposition, a new system has emerged, in which the traditional red lines can expand and shift rapidly, while new red lines can be added according to changing circumstances. SLAPPs have been playing an important role in the formation of this system.

This use of the judiciary has created a new and unpredictable territory for journalists, where a comment on the devaluation of the Turkish Lira or a report on a father’s suicide can lead to accusations of undermining the country’s economic performance, or where news reports on forest fires in the summer of 2021 led to accusations of trying to portray the state as incapable. Naturally, it did not take long for companies that have been consistently winning all large-scale public tenders to realize the power of this weapon. Consequently, compensation lawsuits filed by companies against journalists for nonpecuniary damages on charges of “damaging the commercial reputation” have been added to the politically determined red lines of reporting.

In cooperation with the Justice for Journalists Foundation (JFJ), the Media and Law Studies Association (MLSA) publishes a series of five articles on SLAPP lawsuits that journalists have been exposed to for having defended the public’s rights against those who hold power.

Çiğdem Toker, who was targeted with many suits for damages amounting to millions of lira because she questioned the use public resources; Abdurrahman Gök, who stands trial in a case facing up to 20 years in prison for documenting how university student Kemal Kurkut was killed by law enforcement during Newroz 2017 in Diyarbakır; Ruşen Takva, who was targeted by the Ministry of Interior after reporting the migration from Afghanistan and who was tried for membership in a terrorist organization for covering a march planned in Van as a journalist; Ergün Demir, a local journalist in Kocaeli who was detained for reporting a tragic suicide; and Sinan Aygül, who was sentenced to prison for reporting on child abuse, will talk about their experiences with SLAPP lawsuits.

Articles reporting in detail the judicial harassment suffered by the journalists who shared the truth with the public will be published one by one this week.

You can also read the full report here.