Digital Media and Data Privacy Law Blog

Rachel Donadio wrote recently about Italy's litigious Prime Minister, Silvio Berlusconi.  In three separate stints as Prime Minister, Berlusconi has himself instituted at least two defamation lawsuits against his critics, and a third has been brought by a close associate.

These lawsuits include an action Berlusconi brought in Italy in July 2001 against the British weekly publication The Economist.  The Economist has been a frequent critic of Berlusconi's administrations, and his lawsuit centered upon an article about Berlusconi that appeared in an April 2001 issue of the magazine.  The cover of that issue bore the title "Why Silvio Berlusconi is unfit to lead Italy."  In September of this year, a court in Milan ruled in The Economist's favor and ordered Berlusconi to pay approximately $35,000 in costs.  The court's judgment, in Italian, is available here.  Berlusconi also sued a journalist with The Economist, David Lane, for his 2004 book "Berlusconi's Shadow."  The trial court likewise ruled against Berlusconi in his lawsuit against Lane.

More recently, a close associate of Berlusconi's brought a defamation action against Alexander Stille, an American critic.  In 2006, Stille published a book about Berlusconi entitled Sack of Rome: How a Beautiful European Country with a Fabled History and a Storied Culture Was Taken Over by a Man Named Silvio Berlusconi.  According to Donadio, the plaintiff in the lawsuit against Stille, who is the chairman of Berlusconi's Mediaset network, "objected to Stille's having reported that he was investigated in 1993 for illegal financing of the Socialist Party, without also noting that he was later cleared of those charges" and objected to Stille's claim that "Berlusconi 'has fused his business and private life almost totally,' as evidenced by his appointing [the plaintiff], 'his oldest childhood friend,' to run Mediaset."  The Italian court has yet to issue a ruling in this lawsuit.

Although Berlusconi was not successful in his actions against The Economist and Lane, Donadio reports that succeeding in court may not have been Berlusconi's primary goal in bringing those legal actions.  She writes:

But Stille and others contend that the point is not to win a judgment as much as to intimidate journalists and news outlets with the prospect of a lengthy and expensive court proceeding if they write something unfavorable. "For each of these suits, you may affect the behavior of another 100 journalists," Stille added.

Such litigation seems to have an effect.

Lane, of The Economist, said he was considering cutting all references to Berlusconi in the Italian — but not the British — edition of his forthcoming book on the Mafia. "I'm too tired of spending my own money," he said. "There are no medals to be won by being sued by Berlusconi." 

The accusation that a prominent and powerful public figure uses lawsuits to influence media coverage and as leverage to intimidate journalists attests to the potentially chilling effect the cost and expense of libel litigation can have on speech.  In America, lawsuits designed to chill speech have been termed "strategic lawsuits against public participation" or "SLAPP" suits.  In an effort to combat the chilling effect strategic litigation brought by a powerful person or company can have, a number of states have enacted what are called "anti-SLAPP" statutes.  These statutes provide procedural protections to media defendants and others subject to such actions.

As we will discuss in greater detail in a future post, anti-SLAPP statutes vary in form from state to state but typically provide the defendant with an opportunity obtain an early ruling on the merits of the lawsuit, and, if the defendant prevails, may also provide the possibility of recovering attorneys' fees.  These protections can ease the burden of litigation on a media defendant, and they can operate as a deterrent to those who would bring SLAPP suits.  States that have anti-SLAPP statutes include California, Massachusetts, New York, Louisiana, Georgia, Rhode Island, Maine, Indiana, Delaware, Minnesota, Nebraska, and Washington.  Thus, if you are sued in a state with an anti-SLAPP statute, you may well have an important additional arrow in your quiver to use in defending yourself.