The UK Government has set out plans to crack down on wealthy people and businesses intimidating journalists using defamation and privacy SLAPP actions.
The proposals include strengthening the public interest defence in the Defamation Act 2013, capping the costs that claimants can recover to stop the high cost of litigation being “weaponised” against free speech, and the introduction of a requirement for claimants to prove “actual malice” in libel cases.
SLAPP stands for Strategic Lawsuit Against Public Participation and is used to describe heavy-handed legal actions designed to intimidate and deter journalists.
Courts could also gain the ability to throw out SLAPP cases earlier in proceedings, and use civil restraint orders to stop people from bringing repeated cases.
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Prime Minister Boris Johnson said: “The ability of a free press to hold the powerful to account is fundamental to our democracy and as a former journalist I am determined we must never allow criticism to be silenced.
“For the oligarchs and super-rich who can afford these sky-high costs the threat of legal action has become a new kind of lawfare. We must put a stop to its chilling effect.”
Deputy Prime Minister and Justice Secretary Dominic Raab added: “The Government will not tolerate Russian oligarchs and other corrupt elites abusing British courts to muzzle those who shine a light on their wrongdoing.
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“We’re taking action to put an end to this bullying and protect our free press.”
The announcement came days after two UK investigative journalists sued by Russian oligarchs warned of the “chilling effect” SLAPP legal actions are having on reporting.
And one warned that a law firm had used surveillance tactics against him and a confidential source as a means of “intimidation”.
Catherine Belton and Tom Burgis told a parliamentary committee on Tuesday that intimidation tactics by law firms and private investigators are changing the practicalities of their reporting and mean counter-surveillance drills have become a “standard part of investigative journalism in London”.
Belton (pictured, left) and Harper Collins, the publisher of her book Putin’s People, recently settled five claims that cost the publisher £1.5m, including one from now-sanctioned Chelsea FC owner Roman Abramovich.
Belton told the Foreign Affairs Committee they had agreed to make “very small changes” to the book not because anything was wrong with her reporting, but “because we had too many cases to deal with”.
In fact, some of her sources told her Abramovich “should have given me a bouquet of flowers for writing about him so nicely in the book and going easy on him, but instead, we face this lawsuit”.
After a High Court judge ruled that nine statements about Abramovich in the book were defamatory but threw out what Belton described as his “most exaggerated claim”, the oligarch agreed that most of the main claims he had attacked in the book could be preserved as long as some of the language was softened and more was added to his previous denials.
Belton said she did not want to make all the changes but, if the publisher had not agreed to this settlement, the case would have ended up costing £2.5m in the UK and at least £2.5m again in Australia where Abramovich had also filed a claim.
Belton said her cases show “how important it is that there are better defences for journalists, because no matter how good the source is on some of these claims, and how great the public interest is, the cases are just too expensive to defend, the system is stacked in favour of deep pocketed litigants from the outset.
“My cases are now pretty well known, but they’re just the tip of an iceberg. There are journalists who’ve been censoring themselves, particularly about the activities of Russian oligarchs, for a very, very long time.”
‘The record will always say I’m a bent reporter’
A Kazakh mining giant’s case against Harper Collins and Burgis, who wrote Kleptopia: How Dirty Money is Conquering the World, was dismissed by a High Court judge earlier this month saving the publisher from a bill of more than £1m. The Eurasian Natural Resources Corporation later dropped another suit against the Financial Times over an investigative piece Burgis had written.
FT investigations journalist Burgis told MPs he had received legal letters totalling 600 pages – double the length of the book itself – in response to the standard pre-publication requests for comment.
Through legal firm Boies Schiller Flexner in the US, the ENRC tried to get a subpoena to force the US arm of Harper Collins to reveal anything it might have known about Burgis’s sources.
“It goes without saying that, the sources I spoke with, I would never dream of revealing any details about them, but also it should be obvious that they take enormous risks to help make this information public.”
Because of the subpoena, statements remain on the public record in the US falsely accusing Burgis of being corrupt. “These documents and that record will always say that I’m a bent reporter,” he said.
‘Psychological pressure’
Despite the cases being dismissed and dropped, Burgis said it was “not a complete victory. There’s money that won’t be got back that could have been spent on other books”.
He added: “In an era when newspapers’ business model remains broke and oligarchs are amounting more and more and more wealth this inequality of arms is extraordinary.”
For journalists, he added, “there’s always a danger – I know from conversations with colleagues that you become an expensive journalist, a problematic journalist”. They also face a “psychological pressure” from the first threatening letters that come through.
“You risk humiliation in the public square,” Burgis said. “The letters go to your editors, your publishers, your lawyers, and you are cast as the most monstrous, scheming, corrupt version of yourself.”
These legal threats are having a “chilling effect” on newspapers and book publishers, he also said: “I think that within newspapers people self censor and then they just get bogged down in increasingly overstretched newsrooms working on something for a long time that lawyers keep blocking and move on to the next story, the path of least resistance I think.
“I know of friends who were trying to put books together were finding with some publishers that there’s a massively reduced appetite for anything that could pose a legal risk and anecdotally you hear that there are publishers trying to share the risk of legal costs with authors which is impossible. However attached you might be to a book you can’t voluntarily put your family’s home on the line. So I think it is having that chilling effect.”
Belton, a former Moscow correspondent at the FT, agreed the high costs of legal services in the UK have a “chilling effect”, while the process of defending a case “is so elaborate that it essentially squeezes everything out of the publisher and the costs are enormous”.
She named several law firms involved in her case and other similar ones: Carter-Ruck, Schillings, Harbottle and Lewis and CMS.
Sources ‘take the biggest risks’
Burgis said: “What is happening here is that, especially at this moment when we’re realising what a terrible threat dirty money is to our democracy, we turn to journalists to say ‘ride to the rescue, this is your job, please root out this dirty money wherever it is’ and what do we find? That our greatest obstacles are not hit squads or cyber attack teams, it’s firms in London working day in day out to attack free speech in the interests of very rich and powerful people who rightly deserve scrutiny.”
Burgis also experienced the intimidation of finding out he and a source had been watched in a meeting they set up in an underground car park via an encrypted messaging service. They also turned their phones off when they were there. The source found out they had been watched by the level of detail about the meeting given in a law firm’s letter claiming Burgis had been writing “malicious and false accounts” about ENRC.
Of the lengths they had gone to in order to be discreet, Burgis said: “I’ve learned to take these precautions in Angola and Kazakhstan and so on but I’ve learned that you now increasingly have to use them in London, such are the legions of private spies working for oligarchs and other rich, powerful people who monitor anyone they deem a threat and you have to use them even when you’re going for a relatively humdrum meeting with someone who might have understanding of the legal system if you’re aware that they might be of interest to oligarchs.
“That line [in the letter] ‘you attended this meeting with notebooks and folders, one of which appear to be an orange/red notebook’ – in other words, you have been watched. What is the purpose of that if not intimidation, and that was said, completely shamelessly by [law firm] Quinn Emanuel.”
The reason this is so important, he said, is source protection: “The biggest thing that keeps you awake at night is not the risk to oneself but to the sources. I mean, these are the people who take the biggest risks and the prospect that you could… slip up in a way that will lead to a source being exposed, whether that’s in the UK or in Kazakhstan, or Angola or wherever it may be, that’s the nightmare.”
Picture: Parliament TV
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