Russia’s brutal war in Ukraine has prompted the UK to reassess its cosiness with Kremlin-linked oligarchs. Sanctions now ensnare their yachts, mansions and football clubs. Their reputations, however, are equally precious assets, fiercely protected by armies of well-paid advisers. Journalists who reasonably raise allegations about oligarchs are hit by a barrage of ruinously expensive writs. Suing for libel is not really about a publisher having to prove in court whether an allegation is true. Instead, the rich and powerful wage a war of legal attrition that is so expensive, critics are forced to concede before the case comes to trial.
Officially dubbed “strategic lawsuits against public participation” (Slapps), these methods may as well be known as lawfare. Government efforts, accelerated on Thursday by the publication of a Ministry of Justice consultation, to curb Slapps’ use are therefore welcome, if overdue.
English courts have long been favoured by libel claimants. This is for many reasons, not least that London’s popularity as a home-from-home for the international jet set provides a link to the jurisdiction. Oligarchs are merely one iteration among despots, princelings and tycoons who enjoy a service industry in London dedicated to furthering clients’ interests, no matter how dubious.
The expense of the English system — with adversarial proceedings featuring both barristers and solicitors — and the “loser pays” principle, means it is always weighted towards those with the deepest pockets, particularly when they are being billed by some of London’s most expensive lawyers. The prospect of a £200,000 legal bill even before trial often means newsrooms, many of whose budgets have been slashed over the past two decades, simply self-censor. Tighter capping of costs is worth considering. Streamlining proceedings could also reduce costs.
Meanwhile, freedom of speech is not constitutionally protected as it is in the US, nor is there the same requirement that public figures must show, pre-action, that articles were knowingly false or malicious. Proposals to introduce a US-style malice hurdle, and bolstering the public-interest defence, therefore have merit.
Yet an overhaul beyond libel is needed if Slapps are to be curbed. Increasingly, allegations of privacy breaches or data misuse are invoked. They are effective because they can be used to halt publication before a trial in a way libel cannot. By the time matters are heard by a judge, the story has moved on. There are then darker methods employed by some rich claimants’ private investigators: spying, hacking and intimidation are common threats to investigative journalists.
Slapps hit not just journalists but anyone who dares to scratch the patina of a reputation. Targets include charities, politicians and law-enforcement agencies, who all have tight budgets. Defendants with almost limitless resources can easily tie up investigators in years of procedural wrangling. In such cases, the equality of arms argument — holding that prosecutors should not be able to outgun the defence — has essentially been reversed. This has perhaps a more insidious effect on the rule of law than the misuse of libel against journalists.
Reform is not straightforward. Defining when an action is a Slapp will be thorny. Care must be taken that meritorious claims can still be heard. The British press has also done itself no favours, sometimes using questionable and even illegal methods. But a system that protects celebrities from muckraking is inhibiting proper examination of dirty money’s shady origins.
