Briefing NEWS 13
9 April 2022 THE WEEKWhat prompted this new plan?
In a word, Ukraine. English libel law is
notoriously friendly to wealthy claimants
who wish to silence their critics. The issue
of “libel tourism” – foreigners choosing
to sue in London – has been
acknowledged for decades. But a series of
recent cases brought by Russian oligarchs
has pushed the issue to the fore, along
with the wider issue of London law firms
helping to “launder” the reputations of
shady clients from abroad. Last month,
the Department of Justice launched a
consultation on “Slapps”, a US term
which stands for “Strategic Lawsuits
Against Public Participation”. These are
defined as libel or privacy cases brought
by wealthy companies or individuals,
“where the primary objective is to
harass, intimidate and financially and
psychologically exhaust one’s opponent via improper means”.
Such lawsuits, said the consultation paper, are “an abuse of the
legal process” and “a threat to free speech within the law”.
How is English libel law friendly to claimants?
First, there is the issue of the burden of proof. Under English
defamation law, there is a presumption that defamatory words –
something said or written that damages someone’s reputation –
are false, so the burden of proving that the words are true or
other wise defensible lies with the defendant. (In the US, by contrast,
First Amendment protections for free speech mean the burden of
proof rests with the claimant.) The second issue is that defamation
proceedings are so expensive. Even preliminary legal arguments
can cost tens of thousands of pounds. The cost of a full trial can
run into hundreds of thousands, even millions. Costs are largely
paid by the loser. Understandably, this prompts many publishers
to settle complaints, regardless of the merits of the case, and
encourages many to simply avoid certain subjects so as to avert
legal problems. Libel law creates a “chilling effect” on free speech.
How does this affect journalism?
Two recent cases illustrate the sometimes devastating effects of
such suits. In 2020, Catherine Belton, a former Moscow
correspondent, published Putin’s
People, a widely acclaimed exposé of
the criminal corruption of the current
Russian regime. After the Kremlin
critic Alexei Navalny recommended
the book last year, Roman
Abramovich, three other Russian
oligarchs and Rosneft, the Russian oil
company, launched near-simultaneous
suits against both Belton personally
and her publisher, HarperCollins.
Eventually, the cases were thrown
out or settled following relatively
minor corrections. No damages were
awarded. Yet the cases – which never
even went to a full hearing – cost the
publisher £1.5m. Tom Burgis, author
of the book Kleptopia: How Dirty
Money is Conquering the World,
also published by HarperCollins,
came under a similar attack from
the Eurasian Natural Resources
Corporation, a Kazakh mining
company. A judge dismissed the case
at a preliminary hearing this March.
What wider effects does this have?
All legal systems have to balance free
speech with the protection of reputation.
But even after a series of reforms to libel
law, the UK tilts heavily towards the
latter compared to other free countries;
the US expressed its disapproval when
the UK passed a law in 2010, making
English libel judgments unenforceable
in America. In 2020, the Foreign Policy
Centre think tank examined the pressures
on investigative journalists around the
world, and found that the UK was “by
far the most frequent” country of origin
for Slapp actions, issuing nearly as many
as all the EU nations and the US
combined. There’s no doubt this has led
to self-censorship by UK publishers.
Cambridge University Press declined to
publish Putin’s Kleptocracy by the US
political scientist Karen Dawisha, due to worries about litigation.What’s the Government doing about this?
Foreign Secretary Liz Truss reportedly asked Government lawyers
to find “literally any way” to crack down on Slapps last month.
The consultation paper published by the Justice Secretary
Dominic Raab, soon after, threw the kitchen sink at the problem
in terms of potential solutions. It mooted a series of new reforms
to defamation law, including expanding the available defences,
and requiring, as in the US, that claimants show “actual malice”
(i.e. the defendant either knows the statement was wrong or was
reckless). It also suggested putting a cap on recoverable costs and,
most radically, proposed passing anti-Slapp laws, such as already
exist in the US and Canada.How might an anti-Slapp law work?
The consultation paper floats the possibility that, in Slapp cases,
the burden of proof should fall on the claimant instead of the
defendant: they’d have to prove the defamatory statement is not
true. Caroline Kean, who represented Catherine Belton and Tom
Burgis, argues that such laws should go further. Judges should
decide at the outset of a case whether it relates to public interest
journalism – i.e. whether the individual or company is worthy
of scrutiny. If so, the case should
be halted and resolved by granting
a prominent right to reply, and
correcting any factual errors.So can we expect progress?
Not necessarily. Reforming
defamation has been a painfully slow
process (see box). Even coming up
with a legal definition of a Slapp
would be difficult. “One person’s
Slapp case is another person’s
legitimate attempt to defend their
reputation and/or privacy rights,”
says the legal commentator David
Allen Green. Many lawmakers are
also chary of giving too much latitude
to the British media, with its long
tradition of privacy invasion and
occasional recourse to illegality.
Ironically, though, defamation law
has never been effective at getting
redress for normal people from the
press, because of high costs. Libel is
the archetypal rich man’s law.“Slapps”: the suits that silence free speech
The Government has announced plans to clamp down on the use of the courts by the rich and powerful to avoid scrutinySilencers: Profumo, Armstrong, Maxwell, AbramovichLibel: an inglorious history?
In England, civil actions for libel emerged after the
banning of duelling: from the 18th century, lawsuits
were largely brought by insulted nobles. Hence the
“presumption” that any slur on their character must be
false, which contributed to a long history of damages
being awarded for statements that were subsequently
proved true. John Profumo collected damages over the
suggestion that he was having sex with Christine
Keeler, Liberace when the Daily Mirror hinted that he
was gay. Robert Maxwell repeatedly sued Private Eye
(and many others) for insinuating that he was a crook,
while Lance Armstrong received damages from The
Sunday Times for claiming that he was a drugs cheat.
Since the late 1980s, various reforms have been
introduced, starting with attempts to bring damages
awards down. These culminated in the Defamation Act
of 2013, which clamped down on libel tourism, set a
new bar – claimants have to show “serious harm” –
and codified a series of defences. The most important
defence is still “justification” – the statement was true- but defendants can also show that their story was “in
the public interest” or an “honest opinion”. The Act
reduced libel actions by approximately a quarter, but
still fell far short of what reformers had demanded.