A lawsuit often begins long before the first legal letter arrives.
It may start with an unanswered email, an allegation that was not put clearly enough to a subject, a phone call that was not logged, or a correction that was handled too quietly. By the time a journalist is asked in court to explain how a story was reported, the strongest defence may be the paper trail created months earlier.
That was the central message from Flutura Kusari, senior legal adviser at the European Centre for Press and Media Freedom (ECPMF), during a recent workshop on legal risks for IJ4EU grantees.
In an increasingly hostile media-law landscape, investigative journalists must treat documentation, verification, ethics, and the right of reply not as administrative burdens, but as essential safeguards, she warned.
“The process of documenting all the work that you did until the publication is extremely important if you’re sued or if you’re sent to a complaint to the media regulatory body or to the press council,” Kusari said.
Historically, plaintiffs tended to target media outlets. Now, even in countries with established legal traditions, individuals are increasingly being targeted in an effort to silence dissent.
Kusari outlined a strategy to mitigate legal risks rooted in meticulous documentation, ethical rigour, and a clear understanding of European legal standards.
The power of the paper trail
Kusari’s central message was that a journalist’s careful process of conducting investigations and preparing reporting can be their best defence.
Under standards of the European Court of Human Rights, proving professional diligence can protect a reporter even if an honest mistake is made.
She advised journalists to maintain simple Word documents or notes detailing every step of an investigation, including phone calls, physical attempts to meet sources, and internal editorial discussions. These preparatory notes can become vital evidence in court.
Know the code of ethics
Beyond national laws, Kusari said journalists should study the specific codes of ethics that apply to their work, including those for broadcast media, which may be state-regulated, and those for print and online media, which may be self-regulated.
She urged journalists to consult the relevant code early, saying these documents can provide an important framework for professional diligence if a journalist is later sued for defamation.
The reason is that ethical standards can have a direct impact in court, particularly in areas such as corrections. Proving that a correction was made within the timeframe required by a code can reduce legal liability.
She also noted that decisions by self-regulatory bodies, such as press councils, may be important for courts when judges evaluate whether a journalist acted professionally.
The codes can also define practical requirements journalists must follow, including how to contact subjects of investigations and how much time to allow for a right of reply.
Take the right of reply seriously
Kusari was blunt about the necessity of including a subject’s perspective. She described the right of reply as both a moral and legal obligation.
“There are good journalists and excellent journalists, but there is a minor exception for those who don’t take the right of reply seriously,” she said. “I have zero respect for these journalists.”
She described journalists as being “amongst the most powerful people in the world” since they have an unlimited mandate — unlike a prime minister, say.
“You have the power by just pressing publish on the website to damage somebody’s reputation forever. When you use that power, it’s very important that you give the chance to that individual … so they can defend themselves.”
Kusari added that the damage from a serious allegation can extend beyond reputation to family life, professional life, and financial stability.
She compared the journalistic process to a court of law, noting that even people accused of serious crimes have the right to defend themselves. Journalists, she said, must give subjects a similar chance to defend themselves before publication.
Spell out the allegations
Kusari said generic questions are not enough when contacting the subject of an investigation.
“The expectations from the judges are that when you contact a person — let’s say a minister — you need to lay down all the allegations,” she said. “You would really specify everything that you want to address in your article so that the minister or the subject you are contacting has the chance to respond.”
Kusari acknowledged that being specific can create risks. A subject may try to “destroy the story” by going public first and creating their own narrative. But she urged journalists not to rush or omit details out of fear of losing a scoop, saying the legal risk of failing to provide a comprehensive right of reply is higher.
Documenting this outreach process is also essential, she said, because it helps prove professional diligence under European legal standards.
Allow enough time to respond
Kusari said deadlines for replies must be reasonable.
“The bigger the accusation is, or the more serious it is, then you need to give them more time to respond,” she advised, adding that courts and regulatory bodies may look at whether a journalist gave the subject enough time to respond when assessing professional diligence.
Context matters, she added. In a small country such as Kosovo, a few days may be sufficient, while in a larger country such as Germany, state bodies may need more time to process and respond to inquiries.
Use sources as a starting point
Kusari said anonymous sources should be treated as a lead, not the final word.
“The information you receive from sources should be used as a starting point to verify information but you cannot say, ‘Oh, a source told me this person is corrupt,’ and then report that.”
She said sources are vital to journalism, but information from sources must be verified through further reporting. Journalists should not rely solely on anonymous or verbal claims when publishing serious allegations.
Kusari said journalists need to show that they made all possible attempts to verify information independently. That can include contacting relevant agencies, speaking to people mentioned in reports, and giving subjects a genuine chance to respond to specific allegations.
She again stressed the importance of documentation. Journalists should keep records of the steps they take to verify information, including preparatory notes, emails to institutions, and details of source interviews.
Correct mistakes clearly
Kusari urged journalists to own their mistakes.
“Sometimes, journalists have difficulties apologising,” she noted.
But she warned against trying to hide or minimise an error.
“When there is a mistake and you know there is a mistake, don’t try to camouflage it … I urge journalists to please take the right of reply very seriously.”
Kusari said corrections can have legal significance. Adhering to timelines set out in national codes of ethics can make a media outlet less liable for court-ordered compensation.
The SLAPP threat
The workshop also addressed the rise of strategic lawsuits against public participation, or SLAPPs: frivolous yet vexatious lawsuits designed to discourage reporting.
Kusari is a co-founder of Coalition Against SLAPPs in Europe (CASE) and now works as an expert for the European Union and Council of Europe. CASE has documented more than 1,000 SLAPPs against journalists in Europe.
“These are baseless lawsuits that are used against journalists just to intimidate them,” Kusari said.
She urged journalists to recognise the warning signs, including disproportionate compensation claims, plaintiffs bypassing standard correction or complaints procedures and going straight to court, and the growing practice of targeting individual reporters rather than media outlets.
Kusari also advised journalists to familiarise themselves with Council of Europe indicators to ensure they can recognise SLAPPs if they face one. She urged journalists to report whether EU and Council of Europe protections have been reflected in national law, and apply pressure on justice ministries where implementation is lagging.
She said early support can be crucial, including pre-publication legal review, help from organisations such as ECPMF or the International Press Institute, and solidarity through collaborative reporting, which can keep contested stories in the public domain and make intimidation less effective.
Resources:
- The Coalition Against SLAPPs in Europe
- Media Freedom Rapid Response
- Reporters Shield
- Freedom of Expression, Media Law and Defamation
- IPI Media Laws Database