20100205 Fear, lawsuits and self-censorship

Fear, lawsuits and self-censorship

By J. Michael Cole 寇謐將
Friday, Feb 05, 2010, Page 8

Last year, a retired intelligence officer and a journalist co-authored a book about foreign espionage in Canada. In one section of the book, the authors indirectly referred to a locally based organization that lobbied for a certain foreign government. They claimed that this organization may have received money from that foreign government’s intelligence agencies to pressure Ottawa into supporting a bill that condemned another government for crimes committed in a war more than half a century ago.

Soon after the book was published, some local newspapers carried reviews of it and a former member of parliament (MP) linked it on his blog. Eventually, said organization filed lawsuits against the authors, their publisher, the newspapers that carried the review and the owner of the newspapers, as well as the former MP.

As this is an ongoing case, it would be unwise to discuss the matter in detail. We will also refrain from naming the organization or the parties involved in this article. Suffice it to say that in the mid-1990s, one of the authors played a prominent role in the drafting of a report — nixed by the government for what were ostensibly political/economic reasons — on infiltration of the government he worked for by the intelligence apparatus of a foreign government.

In a recent conversation, the author informed me that in the present case, rather than fight in court, most of the parties involved are believed to have decided to settle out of court. Furthermore, the publisher has agreed to recall the book and to republish it, minus 28 “contentious” lines.

For the sake of argument, let us imagine that the foreign government mentioned above is China.

Given the influx of Chinese investment in Taiwan that is expected to follow the signing of an economic cooperation framework agreement (ECFA) and other financial agreements between Taipei and Beijing, it is not infeasible that Chinese investors, firms, academics and lobby organizations would eventually turn to similar tactics in Taiwan to censor critics in the media and the publishing industry.

There are currently no restrictions on Chinese individuals or companies to file libel or slander lawsuits in Taiwan. While the introduction of Chinese capital or establishment of Chinese firms in Taiwan would not necessarily make lawsuits more likely, a Taiwan-based lawyer told me during a telephone interview on Jan. 20 that it would be more convenient for them to do so.

Fear of lawsuits has a tremendous muzzling effect. In fact, plans for a far more thorough expose of the affair were thwarted after the legal implications of doing so compelled a reassessment of the viability of the project. This also explains the lack of details provided about the case.

What makes lawsuits such attractive tools for individuals, groups, firms and governments who do not want information to be made public is that they confer a veneer of legitimacy. This recourse to the legal system to censor one’s opponent is no less effective than outright censorship of the type seen in China and Singapore, for example. As it could threaten the financial survival of individuals and corporations, a party that has shown its willingness to use that instrument can ruin its detractors and, in doing so, pre-empt criticism by other individuals and publishers.

When weighing the pros and cons of running a story that risks resulting in a lawsuit, even publishers who put journalistic duty ahead of financial considerations will be loath to jeopardize the company’s survival, especially in an age where most media are struggling to remain afloat.

What makes lawsuits even more undesirable for those targeted is that even if a court rules in favor of the accused, years of drawn-out libel action can be prohibitively expensive. When the accusing groups and firms are financially backed by a government, money is not an issue, as they can afford the legal fees, especially if the litigation serves a political objective.

The situation is slightly different in Taiwan, however, as retaining a defense lawyer can be cheaper than doing so in more litigious jurisdictions, and the maximum damage in libel cases usually does not exceed NT$1 million (US$31,000), the lawyer said. Court costs, meanwhile, are paid by the losing party.

A culture far less amenable to lawsuits than in, say, Hong Kong, she said, could also make lawsuits counterproductive for Chinese interests in Taiwan.

Still, increased contact between Taiwanese and Chinese in a highly politicized environment could nevertheless make lawsuits more appealing, and for many, even a maximum fine of NT$1 million may be sufficient to deter them from publishing allegations in a newspaper or discussing them on TV. Success elsewhere in silencing critics through such means could also encourage similar recourse here, despite the lower fees involved.

As Chinese start investing in Taiwan (in real estate, banks, commercial establishments, insurance companies and perhaps one day in the media), similar lawsuits could be launched against a slew of opponents including pan-green publications, academics, authors and pro-democracy activists writing about espionage in Taiwan, independence, Tibet, Falun Gong and other subjects that are unpalatable to the Chinese government. Even more worrying is the fact that, despite the devastating effect on freedom of expression, it would all be perfectly “legal,” as the Singaporean government has proven time and again in its reckless use of the legal system to force its detractors into bankruptcy.

In this brave new world of legalism taken to an extreme, outright censorship by the state is no longer necessary. No reporters have to be beaten up by police or criminal organizations for seeking the truth. But the repression is no less violent. Unless we get clear assurances by the legal system in Taiwan that it would not brook such practices, we have every reason to fear that a similar fate awaits us.

J. Michael Cole is an editor at the Taipei Times.