Comment: Action needed to tackle ‘lawfare’ targeting journalists holding those in power to account

Caroline Kean, a defamation and litigation defence lawyer and partner at Wiggin LLP, writes about lawfare targeting journalists.

She recently defended HarperCollins and ex-Financial Times Catherine Belton against a series of lawsuits brought by Russian figures, and is now defending FT investigations correspondent Tom Burgis against the Eurasian Natural Resources Corporation.

On 20 January a backbenchers’ debate took place in the House of Commons: unusually representatives of every party (except Sinn Fein) participated. Even more unusually, the participants unanimously agreed that the issue under debate – “lawfare” – is a serious threat to our democracy and must be addressed urgently.

David Davis MP defined “lawfare” as the use of our justice system, particularly by extraordinarily rich individuals and organisations, to “threaten, intimidate and put the fear of God into British journalists, citizens, officials and media organisations” resulting in “injustice, intimidation, suppression of free speech, the crushing of a free press, bullying and bankruptcy”.

I am a lawyer who specialises in defending free speech. Since I qualified the number of laws that impact publishers has increased exponentially. I don’t believe that the Human Rights Act should be scrapped (after all, it enshrines the right to freedom of expression), and I do believe that an individual should have the right to control use of their data. But these laws have developed away from their original purpose and now imperil free speech, undermining the ability of journalists to hold those in power to account and to expose malfeasance and corruption.

The Defamation Act 2013 was intended to be protective of free speech: it introduced a “serious harm” test and statutory public interest defence for the first time, cutting the limitation period to one year and restricting “forum shopping”. But in practice it has failed to give publishers a shield against claims brought by wealthy litigants who want to stifle investigation.

The public interest defence, rather than providing a shield to important investigations, plays out in practice as a personal attack on the journalist – not the object of the investigation – putting editorial decisions under a microscope and eroding editorial discretion. It makes no allowance for the fact that there may be very good reasons why credible, tested sources don’t want to come to court and expose themselves to the wrath of powerful men.

Wealthy claimants are increasingly citing GDPR to get round the limitation period. The journalism exemption is being challenged by claimants who want to “correct” the publishers’ interpretation of facts and to undermine honest opinion. In the lawfare debate Liam Byrne MP confirmed from his personal knowledge that it was not the intention of Parliament for the Act “to be used in this malicious way”.

The root of the problem is that even where the law is clear (and libel law is notoriously complex) it is worth it for wealthy claimants to take a punt.

The cost of bringing a case is part of their media strategy which calculates that the mere fact a claim has been issued will deter others from writing about them. This strategy works – certain people aren’t touched by many publishers, whatever the evidence, because even media moguls don’t want the cost and hassle.

And then most claims, even bad claims, settle. The cost of defending even a bad claim – nearly a third of which is unlikely to be recovered even when the publisher wins – can rarely be justified commercially.

In an ideal world every public interest case would be defended to trial, but when a claimant goes to the publisher offering them a commercial way out, it’s unrealistic to expect the much-maligned media to continue single-handedly to shoulder the burden of preserving free speech. The claimant inevitably spins any settlement, however slim, as a “win” and this, in turn, chills any further investigation.

In the US, 31 states protect publishers against what are known as “SLAPP” suits: strategic litigation against public participation, allowing the publisher to file a motion to dismiss a claim at an early stage in the proceedings. Similar laws have been passed in Canada and Australia – the EU has recognised the need for the same in Europe and the lawfare debate called for an equivalent in the UK. While this is welcome, by itself it isn’t the answer – even a “strike out” application can cost six figures.

We need a simpler, more streamlined way of dealing with claims that threaten public interest journalism – and there is a precedent. It used to be the exclusive preserve of juries to decide at trial whether the words published were defamatory and what they meant. Now a single judge reads the piece and applies common sense, with no need for witness statements and evidence. It usually takes less than one day, saves hundreds of thousands of pounds and facilitates early settlement.

In the same way, specialist media judges are perfectly capable of identifying true public interest journalism at the start of a case, and in a clear case should rule that the interest in publication itself should be paramount. The claimant’s rights will be protected by their right to reply, should they choose to exercise it, which the defendant should be obliged to publish in their next edition in return for the claim going no further.

At the close of the parliamentary debate the government spokesman promised “the debate has had an impact, and we will respond”. Don’t let them forget.