An expansionist, revisionist party-state apparatus that for decades has refined the means by which it silences its critics at home is now bringing these techniques to our very doorsteps. Here’s what it does, and how we can fight back.
As revisionist states expand their presence worldwide, investigative journalists, academics, activists and bloggers who attempt to shed light on the negative impact that this new influence may have on rule of law, human rights, the environment, governance and corporate accountability are facing a growing threat of legal action being taken against them to silence them.
China in particular has relied on a variety of tools to silence its critics abroad. In universities that rely heavily on full-tuition-paying Chinese students, professors have come under severe pressure to self-censor on certain subjects in the classroom, among them Tibet, Taiwan, China’s territorial claims, and the Tiananmen Square Massacre. Chinese embassies and consulates are known to have mobilized Chinese students and the Chinese diaspora for protests over visits by Beijing’s opponents or the closure of Confucius Institutes. Recently, break-ins targeting an academic who has carried out important work on Chinese influence have also been reported, and it is not difficult to imagine who was behind those vile acts of intimidation in a democracy.
Something just as worrying which has received much less attention is the fact that China and its proxies have also increasingly resorted to “lawfare” to harass journalists and academics who have sought to expose the activities of its United Front apparatus — the vast network of agencies, firms and entities Beijing uses to advance its political agenda abroad and which in recent years has contributed to an erosion of democratic accountability in targeted countries.
With China’s Belt and Road Initiative (BRI) pushing Chinese influence to every corner of the planet and into areas where rule of law is often weak, the role of the press and academia to highlight potentially problematic areas will become all the more important. Consequently, Beijing and its local proxies in those initiatives will be increasingly tempted to use the threat of legal action to prevent civil society and the fourth estate from exposing the problematic relationships, corrosion of democratic values and nefarious political influence which often results.
This isn’t simply the traditional threat of libel lawsuits by companies or politicians; what we are dealing with today is an expansionist, revisionist party-state apparatus that for decades has been refining the means by which it can silence whomever criticizes it. Having successfully imposed that model at home, it is now bringing it to our very doorsteps. In the past four years or so, a number of journalists and academics outside China have been victims of such assaults on their professional freedoms, in some cases in the world’s leading democracies. Legal action, or the mere threat thereof, is a serious infringement on our cherished values and represents a naked attempt on the part of antidemocratic forces to deny our societies the tools they need to make enlightened decisions at a time when autocratic regimes seek to alter the global rules of governance.
The following is based on the author’s personal experience with “lawfare” and discussions with several journalists and academics who have faced the threat of legal action by Chinese entities for exposing aspects of their behavior that they wanted to remain buried. While each case is different, some underlying principles and modus operandi seem to apply. Awareness of those should assist future victims of such efforts in dealing more adequately with the situation.
The authoritarian playbook
#1 Authoritarians will seek to isolate individuals rather than organizations. Chinese entities have repeatedly used legal action, or threatened the use thereof, against individuals. Only in a few cases did a Chinese entity target a publisher, think tank or academic institution. Authoritarians will often emphasize the asymmetry of power involved in the dispute and often remind the target that the plaintiff is a powerful agency or corporation with “friends” around the world (in my case, the Chinese entity repeatedly pointed out it was a Fortune 500 company and updated its ranking throughout the several months of exchange of legal missives). Unless the victim has prior agreements with his/her employer, he/she is unlikely to receive assistance during the legal process and will therefore have to assume all legal fees. At least initially, authoritarians will often retain the services of one the largest law firms in a country, or those of a legal counsel with personal ties with the ruling elite. Legal firms will use highly threatening language to overwhelm or “break” their victim, citing various articles of criminal and civil law. Authoritarians will also attack the defendant in the press, often using disinformation to undermine his/her reputation while exacerbating the sense of isolation and embattlement.
#2 Authoritarians want inconvenient information to disappear. In most cases, Chinese entities have requested that an article be deleted outright, or that entire passages be removed. It doesn’t matter whether the information is corroborated, hyperlinked or supported by footnotes, or even if it is found on a web site associated with the plaintiff. Authoritarians will not seek corrections, and they see no utility in sending letters to the editor. In the process, they will also often request a defendant publish an apology in major newspapers. Authoritarians will furthermore delete or alter the content of web pages where incriminating evidence was unearthed by the target of legal action. Therefore, journalists and academics should always print and take screenshots of pages where evidence is found and which the author suspects may make an authoritarian entity uncomfortable.
#3 Authoritarians want to impose a cost. In most instances, authoritarians know they do not have a viable legal case (in my case and that of several others targeted by the same Chinese entity, the firm’s leadership was subsequently jailed or investigated for engaging in the very activities described in the articles). But their aim isn’t to win; rather, it is to punish a journalist or academic for unveiling certain facts and drawing attention to them. The objective is to condition targets into self-censorship, threaten financial losses for publishers, and sever relationships between an author and his/her employer. The financial costs, not to mention the months (sometimes years) of anxiety and uncertainty associated with legal action, can drain an intellectual’s concentration and therefore encourage risk-avoidance in future. In many instances, the case will not end up in court and will be limited to several months of “negotiations” between the two parties.
#4 Authoritarians seek to intimidate, compromise and entrap. Firms and agencies will request meetings with the targets of legal action, claiming they “only want to be friends.” This practice is an export abroad of the Chinese security apparatus “having tea” with critics in China. Victims are under no legal obligation to do so, and in fact should avoid such meetings as what is said during them — not to mention possible photographic evidence of the encounter — can subsequently be used for purposes of discrediting. Authoritarians will also often request that an author himself/herself place a request with his/her editor that the article be deleted, with a copy of e-mails to be shared with the plaintiff and its legal counsel. Doing so is tantamount to an admission of guilt and should never be agreed to. Authoritarian entities will exploit any error committed in the legal back-and-forth before going to court to entrap their victim, often by claiming that the defendant had “promised” or “agreed” to do something (in my case, having failed to sue me over the article in question, the entity claimed I had committed to a meeting with its representatives, among other things). Authoritarians will be passive-aggressive, one day wanting to be “friends” and the next vowing terrible retribution for the defendant’s refusal to build a relationship.
#5 Authoritarians will engage in “jurisdiction tourism.” Some countries (e.g., the U.S.) have high thresholds for libel cases, which confers protections against frivolous legal action and ensures freedom of the press. Authoritarians will therefore shop around for jurisdictions where it is easier to take someone to court for libel or other “crimes.” They will also exploit legal systems where a plaintiff isn’t punished (e.g., forced to reimburse the defendant’s legal costs) for initiating a frivolous case. In some instances, a court will hear a case even if it isn’t clear that jurisdiction applies (for example in my case, a Hong Kong-based think tank claiming my article had caused financial losses to its corporate backer in Shanghai sued me, a Canadian national, in a Taiwan court over an article published in a U.S.-based online magazine).
Responses
Expecting “lawfare” to become more prevalent as countries like China export their censorship practices around the world, a few adjustments can be made to mitigate the impact that this can have on freedom of expression. Among other things, legal systems should be modified to increase the threshold for libel action, and courts should be more alert to the possibility that a plaintiff is involved in authoritarian bullying. Frivolous action should always result in the plaintiff having to reimburse the defendant’s legal fees. Courts should also be more aware of jurisdictional issues surrounding cases and not agree to take on a case where there is doubt. Governments should be more vocal in their support for journalists and academics who are thus threatened by authoritarian regimes, and not simply regard those as “inconvenient” or “a simple dispute between two parties.”
Governments, human rights and press-freedom organizations, as well as publishers, should come together to create a fund to assist intellectuals who are assaulted by authoritarian governments. Such help should include legal aid, publicity (when required and safe), as well as financial assistance, especially for intellectuals in societies where press freedoms and civil rights are already weak, which applies to a large number of countries China has targeted for its BRI. There are some organizations out there that do get involved when such situations arise, but a more concerted effort is necessary. Often, victims of “lawfare” simply do not know that such help exists.
As to the victims themselves, they should respond to the threat of legal action by holding their ground and making sure they do not make their situation worse by providing anything that can be exploited by the authoritarians. As long as one is certain of the veracity of the information used in a product, there is no reason why an article should be deleted. Agreeing to such a request can be self-incriminating and can subsequently be exploited by the plaintiff. We should also emphasize again that there is absolutely no legal basis for a plaintiff requesting to meet with the defendant or to become “friends.” Victims of “lawfare” should also use their situation as an incentive for spreading the word about the entity in question and raising as much awareness as possible. This includes briefing governments, intelligence agencies, law enforcement organizations, journalists and academics; and reaching out to others who have found themselves in a similar situation.
If we do not push back, and if we allow revisionist authoritarians like the Chinese leadership and its proxies to silence those of us who seek to shed light on the nefarious aspects of China’s global expansion, attempts to silence us will only become more frequent. What is also certain is that other authoritarians are watching and learning lessons from how we react — or fail to react — to this challenge.
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