Judges need more powers in UK to stop oligarchs’ ‘lawfare’
The writer is a founder of Wiggin LLP, and defended Catherine Belton, Tom Burgis and HarperCollins in the libel proceedings brought against them
Libel claims brought by oligarchs have put Slapps in the news in the UK recently. The term Slapp — “strategic lawsuits against public participation”— has come to refer to any lawsuit issued less with a view to protecting a claimant’s reputation than to frighten off critics. The cases brought in the past year against the journalists Catherine Belton and Tom Burgis, of the Financial Times, are classic examples.
The astronomical costs of litigation and the complexities of free speech laws mean publishers often settle claims that are otherwise defensible — many decide they will simply not publish anything about the claimant at all. Slapps are not restricted to oligarchs, of any nationality, of course, and are directed at individuals and non-governmental organisations just as readily as media companies.
The use of Slapps and “lawfare” were debated in the UK’s House of Commons in January and last month the House of Lords’ communications and digital select committee heard evidence on the scale of the problem. The Ministry of Justice has now issued a call for evidence ending on May 19 2022.
The history of UK libel laws being used to whitewash reputations is not new. A claimant does not have to show that what was published is false, and the fact that something has been published before is no defence.
There were attempts to level the playing field in 2013 by introducing a requirement in the Defamation Act that the claimant show they had suffered “serious harm” before words would be classed as defamatory but subsequent case law has pulled any teeth this might have had. It is not a gateway issue that the claimant has to prove before they can bring a claim, but just another matter to be dealt with at trial. Having such a key issue unresolved until trial in practice means it is worthless, when it is the cost of getting to trial in a libel case that acts as the single greatest deterrent to defendants.
Similarly, the statutory defence of “public interest”, also introduced in the 2013 Act, has evolved to become a tool for the inquisition of the journalist, not a defence to a claim.
In most US states there are specific anti-Slapp laws, and such a measure is now being considered in the EU. In an ideal world, the UK would also have one, but new laws take time to hit the statute books — we need to make amendments to existing law in the meantime.
Public figures — and corporations in particular — should be required to file credible evidence of actual damage before issuing a claim. It should not be enough for them merely to make a bare assertion that they have suffered loss, as they can at present.
Whether the subject is corruption, medical negligence or unsafe building cladding, some issues are so important that there is a public interest simply in having the debate. After the 2013 Act, the courts have routinely held a trial as a preliminary hearing to decide the meaning of the words at the centre of the case — which sets the scope of the claim and the defence. This has resulted in a massive saving in time and costs.
The public interest defence as it stands requires the publisher to show not just that the statement complained of was on a matter of public interest, but that they “reasonably believed” publishing it was in the public interest. It is this qualification that has become a stick to beat the journalist with, and it needs to go.
The specialist judges who currently decide what the words mean are perfectly able to assess whether the subject matter is sufficiently serious that it is by its very nature worthy of protection, regardless of what the journalist thought or did prior to publication. They should be given the power to stop a libel claim at that point. Obviously, the claimant must have the right to put their side, and as a quid pro quo the publisher must publish that, without accepting that it is true or apologising.