Fearless, public interest journalism is now a victim of ‘lawfare’ the world over

The connection between healthy liberal democracies and independent, fearless journalism is well documented. Unfortunately, those in power scrutinised by journalists have stepped up the use of laws to intimidate and silence public interest reporting.

A recent study by the Thomson Reuters Foundation found that 47.6% of survey respondents said their media organisation had faced legal threats based on their journalism. The foundation provides training and professional development for journalists globally and 493 of its alumni responded to the survey.

The usual suspects, such as Russia, Belarus, Myanmar and China, led the way in weaponising the law to intimidate journalists. In these countries, you are likely to end up in jail if you report independently and critically. In 2022, 363 journalists worldwide were jailed for doing their job, the Committee to Protect Journalists reported. That’s blatant, high-level “lawfare” mainly practised in dictatorships and autocracies.

A subtler yet frighteningly effective way of using the law to silence public interest journalism can be seen in liberal democracies such as Australia, where a combination of defamation, national security and anti-terrorism laws is used to intimidate legitimate reporting.

Politicians suing journalists for defamation when scrutinised is a potent example, such as when then-treasurer Joe Hockey sued The Sydney Morning Herald and two other newspapers when his fundraising activities were investigated.

But it’s not only politicians who abuse defamation laws. Media scion Lachlan Murdoch’s defamation case against Crikey and its owner Private Media — dropped in the days following the Dominion v Fox News US$787.5 million settlement in the US — is another significant display of a very powerful individual with a global megaphone who tried to defamation-bully a perfectly legitimate story.

In 2019, the Australian Federal Police raid on journalist Annika Smethurst’s home in Canberra and the search of the ABC headquarters in Sydney were the logical consequences of the more than 80 national security laws (new or amended) passed since September 11 2001.

My colleagues and I pointed this out in several studies. We are still seeing the fallout from these raids in Australia. In the Reporters Without Borders Press Freedom Index, those raids saw Australia drop a staggering 20 places — from 19th in 2018 to 39th in 2022.

The most worrying trend, partly caused by the “lawfare” against journalism, is that liberal democracies have been in retreat since 2012. The global research group Varieties of Democracy, which annually assesses democratic health in 202 countries and regions, recently reported that liberal democracies are back at 1989 levels: 70%, or 5.4 billion, of the global population now live in autocratic political systems.

The autocratic playbook has three principal tactics:

• A fundamentalist use of nationalism. Examples of this are former US president Donald Trump’s Make America Great Again strategy and Indian Prime Minister Narendra Modi’s ruthless use and manipulation of Hindu nationalism. These two countries are not autocracies — yet — and still autocratic tools are clearly used;

• To question and undermine legitimate critical public interest reporting by using misinformation and outright lies. Again, Trump is the undisputed leader of this tactic. Time and again he called media and journalism the “enemy of the American people”. Before Trump, it was unthinkable that a US president would attack a pillar of the American democratic system in this way. Trump’s tactic has been used by other autocrats around the globe, such as by Viktor Orbán in Hungary and Jair Bolsonaro in Brazil;

• When the autocrat has weakened independent media, he (yes, they are currently all men) starts undermining the independence of the justice system — the final check on his power. As the Thomson Reuters Foundation report clearly shows, sometimes autocrats kill two birds with one stone when they use the justice system and repressive laws passed to both weaken the justice system and independent journalism.

Fortunately, it’s not all bad news for media and journalism. As pointed out in the foundation’s report, several justice systems in various countries have ruled in favour of media freedom and protecting journalists.

Advocacy groups such as Reporters Without Borders and the Committee to Protect Journalists also do important work keeping media as free as possible. Notably there have been several positive signs in South and Latin America in court rulings and amendments to laws that were previously used to repress journalism.

Perhaps most importantly, two of the greatest threats to media freedom, Trump and Bolsonaro, are no longer in office.

In Australia, our defamation laws have been amended to include, among other things, a serious harm threshold and a public interest defence. Whether this improves the previously out-of-whack balance between journalism and defamation litigation remains to be seen.

Federal Attorney-General Mark Dreyfus appears sincere in his promises to implement the recommendations made by the parliamentary inquiries that followed the 2019 AFP raids. These are positive signs, but we’ll have to wait and see what they mean in practice for journalism in Australia.