British book publishers, newspapers and journalists have complained for many years about “lawfare” – the legal dispute that the super-rich start to avoid scrutiny, usually of their financial affairs.
Russian oligarchs with ties to the UK have been particularly active in this area. They have often hired the UK’s most expensive lawyers to close investigations into the precise origins of their wealth. But the war in Ukraine has shone a spotlight on this business and changes may be on the way.
“I just don’t understand how we got ourselves into the mess we’re in now,” lawmaker Bob Seely told Britain’s parliament shortly after the invasion of Ukraine. “Why have we come to the position in our society where we have kleptocrats, criminals and oligarchs bullying free media? Oligarchs, Putin’s henchmen, teaming up with amoral lawyers.
Seely was attacking what he saw as an abuse of UK libel laws by oligarchs and other super-rich people to deter journalists, authors and campaign groups from delving too deeply into their financial and public affairs. other matters of public interest. Specifically, the legislator was attacking SLAPPs. The term, coined in the United States, stands for Strategic Lawsuit Against Public Participation.
“Gags are a form of litigation abuse that are not used to right a wrong but to drain as much time, energy and money as possible,” said Policy and Campaigns Manager Jessica Ní Mhainín at the Index on Censorship, which campaigns for free speech.
Ní Mhainín said that this dispute usually involved an imbalance of power: a fabulously wealthy individual faced off against a much less wealthy publisher, author or journalist.
‘This power imbalance is particularly effective in the UK,’ she said, ‘because of the very high cost associated with building a defense in a libel case, which typically exceeds £1 million. . [$1.24 million].”
It’s a very effective deterrent to unrestricted reporting, according to author and journalist Catherine Belton. His bestseller, “Putin’s People” exposed the corruption of the Russian regime and prompted a number of oligarchs, including Roman Abramovich, to launch five libel suits in the UK last year. At a conference of Swedish investigative journalists in the fall, Belton spoke about the pressure of facing a legal attack.
“It can deter anyone from writing anything controversial if you’re faced with the prospect of millions of pounds. Even if it’s the insurance that pays. It’s draining your time, it’s draining your resources. You end up with higher insurance premiums. So of course those are big threats,” Belton said.
Her publisher, HarperCollins, has spent nearly $2 million fighting claims against her book. Faced with even greater costs, they settled with Abramovich agreeing to what appeared to be minor changes to the text. HarperCollins, owned by Rupert Murdoch’s News Corp., was able to defend itself financially. But many authors and journalists do not benefit from this level of protection.
Take Swedish journalist Annelie Östlund, for example. She and two colleagues, who work for a small financial and business publication in Sweden called Realtid, are being sued in the UK over certain articles they published in 2020.
The articles focused on a group of companies owned by Swedish businessman Svante Kumlin. Östlund told Marketplace that she, her two colleagues and Realtid were being sued for the equivalent of around $16 million, a sum well beyond their means.
“The publication would go bankrupt and the three of us would be put into personal bankruptcy if Kumlin won,” Östlund said.
She insisted the articles were accurate, the subject matter was of obvious public interest and the lawsuit was a gag order. Twenty-four press freedom organizations – including Index on Censorship – agree and have strongly condemned the lawsuit. Marketplace approached the UK law firm handling the case on Kumlin’s behalf, but no one from the firm responded to our request for comment.
Östlund thinks the fact that she is being prosecuted in the UK is significant. “The articles were written by Swedish journalists, for a Swedish publication, in Swedish, for Swedish readers. We think they’re suing us in London because they couldn’t have sued us in Sweden.
The UK seems to be making life easier for litigants satisfied with SLAPP.
Caroline Kean, one of the lawyers defending Catherine Belton, said UK libel litigation is very favorable to claimants.
“The plaintiff here does not have to prove that the statements are false and in particular does not have to prove that he suffered financial damage. The entire burden of defense is on the defendant, the publisher,” Kean said.
If the defendant proves that he published the truth, the trial will fail. But lawmaker Bob Seely worries that journalists and authors are being sorely tested, harassed and intimidated when the case against them has no merit. Speaking in parliament, Seely named some of the lawyers representing the oligarchs in defamation cases and then shamed them.
“They have no moral idea what they are doing, but just take huge sums of money that these people are willing to pay to prevent justice being served.”
US Representative Steve Cohen intensified the pressure on these British lawyers by requesting their ban from entering the United States.
The lawyers all insisted they acted within the law and did nothing wrong. But media lawyer Kean said it was clear that while everyone should have the right to defend their reputation, the UK must no longer allow private litigation to hide the truth about matters of public interest , such as bribery and other wrongdoing.
“People need to discuss these things,” Kean said. “They shouldn’t be slapped and people are afraid to discuss them, spread them and write stories about them because of our defamation laws.”
Kean believes a judge should step in at an early stage in a defamation case – before the costs pile up – and decide if the matter is serious enough to be in the public domain. “If so, then the defamation case should be stopped,” she said.
The UK government has promised to take action against SLAPPs and is currently consulting with all interested parties. In a statement for Marketplace, the Law Society, one of Britain’s leading bodies representing the legal profession, pledged its support for “sense-minded” reform of libel litigation.
“We welcome the government’s initiative to strengthen and clarify the rules surrounding this kind of trial,” he said, adding that he regretted “having publicly named lawyers and threatened to penalties without due process”.
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