E X T R A C T
on the defence, and however firmly and reasonably the author believes a defamatory statement, they must nevertheless prove its truth by evidence that is admissible in court. This is the main reason why, at a count some years ago, 95 per cent of libel claims were either won or settled on terms that required withdrawal of the allegations. The Belton case became notorious, settled as it was a few months before Putin went to war. The claimants certainly were not in need of money, and Putin’s People had been published a year before they took action: the flurry of writs came only after Alexei Navalny, Putin’s political foe, had displayed the book in public. The legal actions were initially heard by a judge, who (as British judges usually do) found that the book bore a number of defamatory meanings, which means merely that it tends seriously to lower a claimant in the estimation of “right thinking” people. The judge sent the case forward to a multimillion-pound trial. This was a political lesson for the UK media – defame Putin and his cronies at your peril.
They hardly needed it: over the previous few years books had gone unwritten, or had been censored or simply not published, for fear of defamation actions about statements reasonably believed to be true, but not capable of proof by evidence admissible in a British court. Typical was a book by Karen Dawisha, Putin’s Kleptocracy: Who owns Russia?, which was turned down by Cambridge University Press. Its editor praised her manuscript, but wrote in rejection: ‘The risk is high that those implicated in the premise of the book – that Putin has a close circle of criminal oligarchs at his disposal and has spent his career cultivating this circle – would be motivated to sue”. The editor added that even if they won, the costs would be ruinous – another reason why the UK’s claim to be a land of “free” speech is asinine when it comes to investigation of things that really matter. Especially when those investigations cast aspersions on people of great wealth.
Such people are embraced by British judges. As one judge recently said of an international businessman, “his professional achievements and family wealth make him a rare member of a small elite in the world of business. Members of this elite class are attracted to London … and it is in the public interest that the reputation of such people should not be unlawfully damaged. Their business activities are of importance to the economic wellbeing of this country.” An importance that, all too often, judges permit to outweigh freedom of critical speech about their business activities.
But it is the current state of British law that allows this. Judges, not parliament, have fashioned the most recent threat to press freedom – the sprawling growth of a law against the invasion of privacy.
Britain (to its discredit) had no protection for privacy at all until the 1998 Human Rights Act reproduced Article 8 of the European Convention on Human Rights: “Everyone has the right to respect for his private and family life, his home and his correspondence”. “Respect” is fine, unless the public interest requires exposure of mansions bought with laundered money or the use of family trusts to avoid tax, or a “private” life that is abusive of a partner, or confidential documents that show corruption. The public interest may justify publication, but wealthy complainants can readily put a stop to this by obtaining an injunction forbidding release of any information in relation to which they claim a “reasonable expectation of privacy”.
“Judges, not parliament, have fashioned the most recent threat to press freedom – a law of privacy
They simply sue for the civil wrong (called a tort) of “misuse of private information”, and obtain injunctions readily enough by showing that they are more likely than not to succeed at trial. The information – no matter how important – cannot be published and media defendants often give up at this point because news is a perishable commodity and a trial could take years, or because of the prohibitive costs of an eventual trial, whether they win or lose.
The rot began, fairly precisely, in 2004–05, when both the top court in the UK (then the House of Lords Judicial Committee) and the European Court of Human Rights decided that two much-photographed women, the supermodel Naomi Campbell and Princess Caroline von Hannover of Monaco, had a reasonable expectation of privacy when they walked down a public street. These highly questionable results were reached by majority decision. Campbell had strongly denied that she had ever used illegal drugs, but she was photographed entering Narcotics Anonymous. Princess Caroline was a fashionable celebrity who was part of Monaco’s royal family and sometimes took on official duties, but the Eurocourt ruled that she must be protected from publication of harmless photographs showing her shopping and riding. Her right to privacy “extended beyond the family circle and included a social dimension or a zone of interaction even in a public context”.
For this incoherent reason an enforceable right of privacy over social and financial networks was soon being claimed by kleptocrats and conmen alike.
So privacy actions proliferate, to deter or freeze investigative journalism by suppressing information that is factual. The courts consider that “a reasonable expectation of privacy” covers a very wide field, not only one’s physical or mental health, but racial or ethnic characteristics … the generality of personal and family relationships … information conveyed in the course of personal relationships; a person’s political opinions and affiliations; a person’s religious commitment; personal financial and tax related information; personal communications and correspondence; matters pertaining to the home; past involvement in criminal behaviour; involvement in civil litigation concerning private affairs; and involvement in crime as a victim or a witness. Any self-respecting kleptocrat with a mansion and a superyacht and a tax-avoidance scheme has a vast amount of information he or she can call on the courts to protect from exposure, unless the defending author or journalist can prove (the burden of proof, of course, being on the defendant) that publication serves an overriding public interest. And the public interest in freedom of speech is not enough: most cases will involve information obtained from companies or government departments in breach of confidence, so judges say that keeping confidences is in the public interest as much as, or even more than, freedom of speech. So the law does not pit one person’s privacy against everyone’s right of free speech – it favours privacy unless it can be outweighed in a “balancing exercise” with the public interest. But this judicial balancing exercise is a nonsense – the two cannot sensibly be compared. All it means is that judges impose their own prejudices and preferences to decide which is to prevail. Most High Court judges spend their professional lives as commercial lawyers and have a property-based outlook when it comes to balancing a right to keep commercial secrets against the right of free speech: for them, this is like balancing hard cash against hot air.
This ruling was applied by the UK’s Supreme Court in 2022 to prevent Bloomberg from reporting a highly significant development in tackling corruption. The public judgement is littered with unnecessary name redactions, but it appears that a journalist from Bloomberg News got hold of an official request, presumably from the Serious Fraud Office, and apparently to the courts of Hong Kong, to provide information about an allegedly crooked businessman
JANUARY 20, 2023
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