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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 4 TLS 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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E X T R A C T I M A G E S / G E T T Y I D I A R M M A C D P E T E R © and his company, frequently named and criticized in the UK parliament. But the Supreme Court merely ruled that “ZXC” had a “reasonable expectation” that investigations into his alleged corruption should be kept private. As a Supreme Court decision, the Bloomberg case carries great weight. A month or so after it was delivered it deterred the Metropolitan Police, and then the press, from revealing the names of persons who had been issued with fines for attending Downing Street parties in breach of Covid rules, unless they chose to “out” themselves. At the time of writing it was preventing the publication of the name of a Conservative MP arrested for rape. What is striking is that none of the Supreme Court judges could discern any public interest in publishing the names of suspects, even though it is well known (especially in rape cases) that doing this often causes more witnesses to come forward – sometimes with evidence of other crimes, and occasionally with evidence that exonerates the suspect. It is also a boon to the watchdog function of the press to alert the public to the behaviour of law enforcers, which is often ineffective or incompetent or overzealous. (See the disgraceful behaviour of the Met in Operation Midland, searching without good reason the homes of Lords Brittan and Bramall, and the former MP Harvey Proctor.) The Supreme Court members seemed oblivious to these public goods, which were incapable of counterbalancing the privacy right claimed by ZXC and his company, X Ltd. The full story – including their real names – was set out in the court’s “closed” judgement. Damages for injury to reputation tend to be more than the law awards for the loss of an arm or a leg, and more than the criminal compensation board awards to those who have suffered grievous bodily harm or rape. The real problem is that free speech about the wealthy is now prohibitively expensive – damages are dwarfed by legal costs that run to millions. The going rate for KCs is heading towards £1,000 an hour, with a fashion accessory – a junior – at up to two-thirds of the price. Then come the solicitors – a team of partners, employed solicitors, paralegals and clerks, whose bill is much higher. For oligarchs, of course, this is chicken feed, but for authors and small magazines it can be fatal, and big media groups often do not fight, even when they have a good case, if the claimant is a powerful corporation or a billionaire bent on revenge. Newspapers, book publishers, authors and broadcasters all know that fighting an action – even if it takes only a week in court – will cost both sides over £1 million, which the loser will have to pay. (It was estimated that the Johnny Depp libel case against the Sun in 2020 cost him £10 million, and he had to pay the newspaper’s costs of £5 million.) As for kleptocrats and foreigners who have been formally sanctioned by the UK government, the sanction should deprive them of the right to bring any action in England, because they no longer have a reputation here. Why should foreign individuals or corporations sanctioned for war crimes or serious JANUARY 20, 2023 human rights abuses be allowed to use our courts in order to win money and discourage reporting about their crimes? Incredibly, the Sanctions Act 2018 expressly permits them to do so, by exempting money sent to the UK to pay fees for “genuine legal advice and litigation”. In the first month of Putin’s war on Ukraine, his most odious sanctioned oligarch, Yevgeny Prigozhin (“Putin’s chef”), continued his libel action against Eliot Higgins, founder of the investigative website Bellingcat, who had published evidence of Prigozhin’s connection with the Wagner Group, Russia’s brutal mercenaries. It took four more weeks of bombing before Prigozhin’s law firm asked to be discharged, without being required to pay Higgins’s costs, but the Sanctions Act should have prevented them from suing on behalf of a sanctioned oligarch in the first place. For all that Britain boasts about free speech, it has had a wretched history here – other countries do it better. American law gives much surer protection to defamatory words if they are published in good faith about public figures, and most European laws treat defamation as no big deal, providing a right of reply for those attacked or else an order for retraction, rather than heavy costs and damages. It has been estimated that the cost of obtaining a remedy at trial for wrongful publication in Italy and France amounts on average to €15,000, whereas in the UK it is very often in excess of £1 million. Perhaps it is the English way to have an almost supernatural belief in the importance of reputation (notwithstanding Iago’s point that it is “oft got without merit and lost without deserving”), and hence to devote much precious court time to forensic struggles over the meaning of words. It took a threat of real war to wake members of parliament up to lawfare. Their counteroffensive, however, was aimed at reputation lawyers, who were named, blamed and shamed for offering “legal intimidation services to the corrupt, to organised crime, to the Russian state or to its proxies”. They were “white collar collaborators” who had “corrupted the British justice system”. It did not occur to these fulminating MPs that perhaps it was the British justice system that was unjust, being tilted against freedom of expression long before Putin’s friends took advantage of it. But this time action was promised “quickly and effectively” by the justice secretary, namely an “antiSLAPP” law and a modern Bill of Rights with a presumption in favour of freedom of speech – nothing less, or so Dominic Raab claimed, than a “free speech revolution”. SLAPP stands for “strategic lawsuits against public participation” – a nonsense name dreamt up by American academics. In the US more than thirty states have adopted anti-SLAPP laws, enabling judges to strike out defamation and privacy claims that abuse the legal process because their primary objective is to stop legitimate reporting. This is not a difficult task for an American judge, who can readily dismiss claims that undermine the First TLS Roman Abramovich at the High Court of Justice, London, 2011 Amendment to the US Constitution, which protects speech unless it is not only mistaken, but also made maliciously or recklessly. Anti-SLAPP action may be taken immediately after the abusive suit is filed, and (this is rare in the US) legal costs may be awarded to the media defendant. In England, meanwhile, the first problem was how to define a SLAPP. Raab described it as an action “where the primary objective is to harass, intimidate and financially and psychologically exhaust one’s opponent via improper means”. But this “primary objective” will be impossible to prove – how can solicitors’ letters, required by the preaction protocol, be called “improper” when they demand redress for a libel? It might be possible to craft a law, applicable to all claimants and all cases, that gives a wider meaning to “abuse of process” and entitles a judge to strike out an otherwise good claim if it is “inappropriate to be tried” because, for example, it invokes foreign facts or transactions that cannot be scrutinised by admissible evidence in a London courtroom, or the claimant has refused offers of other remedies (mediation or recourse to Ipso), or there is a stark “inequality of arms”, or a trial would be disproportionate or would not settle the quarrel. These are some of the factors identified in a model law promoted by the UK AntiSLAPP Coalition (established in January 2021 and co-chaired by the Foreign Policy Centre, Index on Censorship and English PEN), with widespread support from media figures, although judges would be reluctant to use it and its complexities would make more money for reputation lawyers (and more still when decisions under it go to appeal). This “model law” does nothing to remedy the defects in the present law. Reforms to end the unequal justice dispensed by defamation and privacy laws and lawyers are not difficult to identify, but they appear nowhere in Raab’s plans for a Bill of Rights to “strengthen protection for freedom of speech”. His rather squalid exercise is designed to prevent citizens from easily accessing human rights protections and actually does considerable damage to the rights of the media to raise free speech issues in criminal or commercial litigation, or in any context involving what the government claims to be national security. Genuine media law reform must begin with the burden of proof in defamation placed where it belongs – on claimants who seek money and threaten publishers with millions of pounds in legal costs unless they expurgate newsworthy articles. The media, which is on the defensive every time it currently appears in court, must be given some real protection. For example, to resist privacy injunctions against public interest stories and “balancing acts” in which judges trained in the protection of property and corporate secrecy rate these values more highly than the public good in exposing corruption and malfeasance. Lawfare disrupts democracy by enabling the wealthy to intimidate publishers and suppress news and opinions that the public are entitled to hear. It is, for the most part, fought below the waterline, in confidential letters between lawyers and trips to a judge in chambers behind closed doors, or in the offices of taxing masters privately assessing costs. The struggles that come to the surface, like that over Putin’s People (Roman Abramovich and the oligarchs vs Catherine Belton), only provide examples of the lawfare that has gone on exponentially for decades and has deterred and diminished investigative journalism. It is not sufficient to shame and blame the London reputation lawyers – the US Congress is now suggesting that they be denied visas and have their money confiscated if found in US banks. Lawfare will only end when the laws are changed – they speak the only language that predatory libel lawyers understand. n This is an edited extract from Lawfare: How Russians, the rich and the government try to prevent free speech and how to stop them by Geoffrey Robertson KC, published by TLS Books (£10.99) 5

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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

4

TLS

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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