E X T R A C T
A town called Sue Russian oligarchs are using British courts to close down investigative journalism
GEOFFREY ROBERTSON
I M A G E S
B A G G E T T / G E T T Y
T O N Y
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Think of what our Nation stands for, Books from Boots’ and country lanes, Free speech, free passes, class distinction, Democracy and proper drains.
John Betjeman, “In Westminster Abbey”
IN BETJEMAN’S England, “free speech” washes like fluoride through the suburban water supply, but as a cultural assumption rather than as a constitutional right. When liberty exists as a state of mind, unprotected by legal rights, it gets limited when uncongenial to people with real power, assisted by those George Orwell termed “the stripedtrousered ones who rule” – notably judges, Treasury solicitors and reputation lawyers. As Orwell pointed out in the introduction to Animal Farm (which his left-wing publisher turned down because it insulted Stalin), “If liberty means anything at all, it means the right to tell people what they do not want to hear” – an aphorism engraved on his statue outside the BBC’s headquarters as a spur to the corporation to resist government pressure. But investigative journalism remains a struggle to tell inconvenient truths against the wishes not merely of governments, but of oligarchs and wealthy public figures and powerful transnational corporations wishing to furbish their reputations.
Nonetheless, free speech lives not in our law but in our rhetoric and our national pride. It was described by the justice secretary, Dominic Raab, as a “quintessentially UK [right] … a unique and precious liberty on which the UK has historically placed great emphasis in our traditions”. This is nonsense. Magna Carta was silent on the subject in 1215, and in 1275 came our first statutory prohibition: the crime of scandalum magnatum to protect “the great men of the realm” from speech that might arouse the public against them. Hence Lord Coke’s maxim that “the greater the truth, the greater the libel”. (He was explaining, with homely seventeenth-century sexism, that “a woman would not grieve to be told she had a red nose, unless she had one”.) Criminal libel sent to jail those who discomfited great men of the realm, or the king or government. During the Civil War, Parliament decided to set up a board of “the good and the wise” to license newspapers, which led the poet John Milton to issue an immortal cry for press freedom, the Areopagitica, declaring:
Promiscuous reading is necessary to the constituting of human nature. The attempt to keep out evil doctrine by licensing is like the exploit of that gallant man who thought to keep out the crows by shutting his park gate. However, during the Restoration a sinister figure emerged – a “surveyor of the press”, who spied out sedition and sent publishers to the gallows. Milton himself was lucky to escape, and his epic poem Paradise Lost was burnt by the public hangman for suggesting that an eclipse of the sun “with sudden fear of change perplexes monarchs”. It was forbidden to describe the king as perplexed, and in this period republican supporters were hunted down and strung up. Previously, in England’s brief republic (the Interregnum of 1649 to 1660), the Levellers (who were not early socialists, but rather highly opinionated investigative journalists) had seen their leader twice put on trial for treason. But John Lilburne found the Achilles heel in Oliver Cromwell’s body politic – the jury, which both times stood up to the government and acquitted Lilburne for his incendiary pamphlets.
So did the jury that in 1670 acquitted the Quakers William Penn and William Mead for preaching their
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religion, despite the judge’s direction to convict. Although locked up for two days without food or fire or even a chamberpot, the jurors insisted on returning a verdict of “not guilty”. The government had them imprisoned for disobeying the judge, but ultimately the courts decided that jurors were entitled to follow their own consciences. The juries that acquitted Lilburne and Penn held a candle for free speech that occasionally flickered in defamation trials in later centuries, until they were abolished in such cases by Nick Clegg and the coalition government in 2013.
William Caxton’s printing press had begun rolling at Westminster in 1476, and it was not long before the king’s judges in the Star Chamber devised ferocious punishments for sedition: cutting off the ears of Puritan preachers. A second offence meant the stumps of their ears would be cut off as well, with the letters “SL” (for “seditious libeller”) burnt into their foreheads. At the time of these barbaric penalties for political speech, the Star Chamber (in effect, the king’s private court) was faced with the problem that too many great people in the realm were killing themselves in the course of settling their quarrels by duelling. So it devised an alternative to fighting a duel with pistols – a law of civil libel, which the judges soon developed in a way that was designed to encourage plaintiffs to hazard their money rather than their life, by a legal presumption that all defamatory statements were false. This presumption survives today, although it is absurd (defamatory statements are often true, or at least partly true), and it remains the ludicrous reason why the burden of proof is thrown on the defendant.
Vladimir Putin gushes lies to justify his barbaric attack on Ukraine. These lies are, for people in Russia, “facts”, and his lickspittle MPs have rushed through a law to make it a crime for anyone to deny them by publishing the truth. Such censorship is anathema to a nation like Britain, which boasts of its history and tradition of “free speech”. But wait a minute. As the Privy Council (comprising English law lords) pointed out:
TLS
Statue of Justice, Old Bailey, London
“The law of libel, unlike any other civil law, puts the burden of proof on the defence
Geoffrey Robertson KC is founder and head of Doughty Street Chambers, Europe’s largest human rights practice. His autobiography, Rather His Own Man, was published in 2018. In 2022 he was sanctioned by the Kremlin
Free speech does not mean free speech: it means speech hedged in by all the laws against defamation, blasphemy, sedition, and so forth. It means freedom governed by law. And governed by lawyers, who act for the very rich to wage a bloodless but nonetheless scary war, in the form of litigation, against those who attempt to criticise or expose them. “Lawfare” in this sense has come to mean the use of legal strategies to harass or intimidate publishers – to make them pay, literally, in large and unrecoverable (even if they win) legal fees, and in heavy damages and their own legal fees if they lose. This is not a new problem, but it has come into recent focus as publishers of prescient books about Putin have been frightened and deterred by lawyers acting for his oligarch friends, threatened with legal costs that can run to millions of pounds. You cannot blame lawyers for using the law. But that law is antipathetic to serious journalism and must be reformed if the Fourth Estate is to function effectively in our democracy by scrutinising the wealthy and the powerful.
“L
awfare” is a weak pun, with a pejorative tinge when used by those on the receiving end of writs for l ibel and breach of privacy. The term originated in America in the 1950s, first used by army chiefs who objected to legal actions brought by civil liberties groups over discrimination in the military. In Brazil the label was hung on the right-wing judicial organs that concocted corruption allegations against the country’s once and recently re-elected president, Lula da Silva. In Britain, perhaps the best example of “lawfare” against freedom of speech was Mrs Thatcher’s courtroom crusade to stop newspapers from reporting any details of the former MI5 officer Peter Wright’s autobiography Spycatcher, while many copies of the book were being sold in the US and around the world. The word came into vogue in Britain in 2022 as a description of the work of “reputation lawyers” who had been issuing threats and writs against authors and publishers of books about Russian oligarchs, many of whom would be sanctioned by the British government after their friend and benefactor Putin invaded Ukraine.
The most notable victim was a distinguished journalist, Catherine Belton, author of Putin’s People: How the KGB took back Russia and then took on the West, which attracted a sudden blizzard of legal actions from Roman Abramovich and three other oligarchs, and from Rosneft, Russia’s national oil company, claiming that the book libelled them. It was estimated that this would cost her publishers £5 million to fight successfully, and more than twice as much if they lost – a real prospect because of the unfair rule in English libel cases that the defendant bears the burden of proof of truth and other defences. There had been preliminary skirmishes before the case settled, at a cost to HarperCollins of £1.5 million in legal fees and a cost to Belton of a year of stress and exhaustion in defending statements of great public interest that she believed were true. The court-enforced settlement was, as usual, strictly confidential, so the public cannot appreciate what infringements of free speech its terms require.
This is the perennial problem of defending allegations about Russians, and wealthy claimants from the Middle East, or indeed from Britain, namely the impossibility of proving truth when it is hidden behind offshore trusts or in tax havens, or has come from sources who fear reprisals. The law of libel, unlike any other civil law, puts the burden of proof
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