Four Countries, One Year Later: Media Freedom and Democracy

September 15, 2023 is the 16th annual International Day of Democracy. ABA CHR’s TrialWatch team, which is part of the Clooney Foundation for Justice’s TrialWatch initiative, looks at the situation of media freedom and democracy in four countries where TrialWatch is actively monitoring criminal cases.

On the International Day of Democracy in 2022, United Nations Secretary-General António Guterres emphasized that “free, independent and pluralistic media” is a pillar and a bellwether of a healthy democracy. Secretary-General Guterres called on observers to denounce “brazen” attempts to silence, surveil and harass journalists across the globe. One year later, as the International Day of Democracy arrives again, the American Bar Association Center for Human Right’s (CHR) TrialWatch Initiative looks at four countries where journalists and individuals fighting for democratic freedoms have faced increasing attacks in the form of judicial harassment and criminalization.

One tactic commonly used to chill public interest reporting is the filing of “SLAPPs”, which stands for strategic lawsuits against public participation. A SLAPP broadly refers to an abuse or misuse of a judicial procedure as retaliation against a target who exercises a protected right, such as critical speech. These cases are usually initiated by powerful politicians, public figures or private companies in an attempt to intimidate or bankrupt their critics; while the lawsuits lack substance, they are often lengthy and extremely costly to defend, particularly when numerous lawsuits are filed against a single target.

In Peru, ABA CHR is monitoring several lawsuits filed by private complainants against journalists under a criminal defamation provision. In addition to imposing enormous financial burdens on journalists and their outlets (both in terms of legal fees and possible monetary damages), criminal defamation also carries the threat of incarceration. ABA CHR monitored one case against Paola Ugaz, an investigative journalist from Lima who has reported on government corruption and abuse by a Catholic lay organization. In July 2023, Ugaz testified at a hearing before the Inter-American Commission on Human Rights in which she recounted facing an “entire ecosystem” of lawsuits alongside “near-constant harassment and abuse” online. Early findings from ABA CHR’s monitoring in Peru suggest that most criminal defamation cases filed against journalists are eventually dismissed; however, the message sent to journalists about the risks of public interest reporting is loud and clear.

In Indonesia, ABA CHR monitored the 2021 case of a journalist convicted of online defamation under the Electronic Information and Transactions (“ITE”) law for reporting on government corruption. Although Indonesia’s parliament passed a new Criminal Code at the end of 2022 (which will supplant the ITE law), it will not come into force until 2026. Until then, the ITE law remains in force, and as of September 2023, human rights activists continue to face judicial harassment under this same provision. The new Criminal Code itself is far from a panacea, as it includes provisions that similarly criticism of government institutions.

In Cambodia, the “shrinking civic space” continued to collapse in the lead-up to the July 2023 elections. Since 2020, ABA CHR has monitored many cases against journalists and government critics under an incitement provision that the UN Working Group on Arbitrary Detention has declared incompatible with Article 19 of the ICCPR. By 2022, highly politicized trials – including mass trials in which dozens of defendants were prosecuted together – have left over 100 political opposition figures, activists and journalists imprisoned or in exile. Media freedom declined even further in 2023, with the forced closure of the last independent media outlet in the country. With few independent media operating in Cambodia, authorities increasingly turned their attention to rank-and file opposition politicians, arresting over a dozen in the first half of 2023 alone. While the majority of these cases have not yet gone to trial, the proceedings left dozens of opposition party members and leaders in pretrial detention and unable to participate in the elections, ensuring another “landslide” victory for long-time Prime Minister Hun Sen in a vote that the U.S. Department of State called “neither free nor fair.” 

Perhaps nowhere is the link between media freedom and democracy as evident as in Guatemala, where José Rubén Zamora – an award-winning journalist and founder of Guatemala’s most important independent newspaper, elPeriódico - was convicted on trumped-up money laundering charges and sentenced to six years in prison after exposing corruption for years. Over the last few years, the judiciary has been increasingly co-opted to serve a political agenda, with many former anti-corruption justice actors facing criminal prosecution and/or exile. In an election year, the criminalization of a preeminent journalist as well as investigations into a dozen of other journalists at the now shuttered elPeriódico was another clear signal that anti-corruption champions and critics of the current regime and its allies would face reprisal in the form of criminal proceedings. As in Cambodia, the courts have been used to put a thumb on the scale of the electoral process; three presidential candidates were barred from running based on technicalities, the President-elect’s party was provisionally suspended during the electoral process. Additionally, the Attorney General’s office has launched investigations into Semilla, the party of the President-elect, and has sought to strip immunity from the electoral judges who ultimately blocked the suspension of Semilla, allowing the election results to be certified.

As democracy, rule of law, and civic space decline in many countries globally, judicial harassment of journalists in the form of SLAPPs and criminalization of protected speech is increasing. Shrinking media freedom is a result of and a contributor to democratic decline. However, there are reasons for optimism as a wide range of actors continue to spotlight the importance of protecting journalists and democratic safeguards associated with freedom of expression. There is increasing recognition of the weaponization of the criminal justice system; the Inter-American Commission on Human Rights, for example, recently held its first public hearing on the threat of SLAPPs to media in Latin America. Additionally, global and regional efforts to expose SLAPPs, define standards and build solidarity among those who are sued and the lawyers who defend them are crucial steps in the ongoing fight to protect democratic freedom. 

The materials contained herein represent the opinions of the authors and editors and should not be construed to be those of either the American Bar Association unless adopted pursuant to the bylaws of the Association. Nothing contained herein is to be considered as the rendering of legal advice for specific cases, and readers are responsible for obtaining such advice from their own legal counsel. These materials and any forms and agreements herein are intended for educational and informational purposes only.