Protecting Our Free Speech

After the recent Reykjavik District Court decisions penalizing a journalist for reprinting publicly-available information and presenting both sides of a domestic dispute, the Icelandic Supreme Court has taken some baby steps towards establishing a free press in Iceland.

The newspaper DV reported that Iceland's most successful soccer player, Eiður Smári Guðjohnsen, had received large loans from a bank without adequate collateral. When the banks failed in 2008, their lending practices came under intense public scrutiny, and Guðjohnsen's situation was singled out by the press as emblematic of the favoritism shown to the rich and famous.

Although he had been featured prominently in European media for years, Guðjohnsen felt his personal privacy had been invaded when his shady financial dealings came to light and filed a libel suit against the journalist. The district court sided with him, but, in a rare display of common sense, the Supreme Court ruled that the public discussion of this matter was protected by the Icelandic Constitution's free speech guarantee. Not only were the lending practices of the banks a matter of public concern, but Guðjohnsen's salary had been widely reported; additionally, his gambling addiction had been written about in the foreign press.

Even though the reporter ultimately prevailed, this matter still stands as a warning to Icelandic journalists. Not only did the court fail to establish a bright line test that newspapers could use when deciding whether to go forward with a story, but, outrageously, the reporter and his newspaper were required to pay their considerable attorney fees and litigation costs.

The real threat created by the nuisance libel suits filed by the powers-that-be in Iceland lies in the expense and inconvenience that they entail. As a practical matter, the financial viability of a media organization today is precarious, and the very substantial costs they face in these suits endangers their existence.

To deal with this problem, many states in the United States have enacted anti-SLAPP (Strategic Lawsuit Against Public Participation) legislation. These statutes allow the defendant to file a motion to dismiss the complaint if it involves a constitutionally-protected matter. The filing of an anti-SLAPP motion halts all discovery. Once the defendant has made a prima facie showing that the matter is protected, the burden falls on the plaintiff to establish a reasonable probability of success on the merits. If the trial court denies the motion, the defendant may immediately appeal. If the defendant prevails, the plaintiff is required to pay its attorney fees.

The obvious benefit of such legislation is to greatly reduce the expense of engaging in journalism. It would help stop those with considerable financial means from abusing our legal system to bully those seeking to reveal their unsavory acts or to challenge their opinions. But even more is required to give us a fully-functioning free press.

It is undeniable that private citizens enjoy a right to privacy. It is also true that this right may be violated by the indiscriminate publication of personal information. What we really need is a pronouncement by the Icelandic Supreme Court or the Icelandic legislature clarifying the line separating matters of public concern and matters of private concern. As it stands now, a practicing journalist has no way of determining before publication whether a story will subject him or her to civil (or even criminal) liability. Legend has it that the Roman emperor Caligula would have laws inscribed on the tops of columns where no one could see them, then prosecute individuals who violated them. Our current situation is not dissimilar.

In the United States, the Supreme Court provided in 1964, in New York Times Co. v. Sullivan, a viable test for journalists. The Court ruled that a public official could recover damages for a defamatory falsehood relating to his official conduct only if the published statement was false and that the statement was made maliciously or with reckless disregard of whether it was false or not. A decade later the Court redefined its definition of public figure in Gertz v. Robert Welch, Inc., where it held that public figures are those who "thrust themselves" into the public eye and invite close scrutiny.

These cases have not stopped libel suits against newspapers, but at least they give a logical framework for editors to use in deciding how much collaboration is needed before publication. It would, of course, also help if the Icelandic Court would clarify that truth is an absolute defense to a defamation charge. Astonishingly, as recent cases have shown, the republication of a true statement from publicly-available government documents can -- under the current state of law -- form the basis of a libel claim.

I am encouraged by the decision in the Guðjohnsen case, but we still have a long, long way to go.