25 Jan 23 | FEATURED: Jemimah Steinfield, News and features
In the aftermath of her murder in 2017, the family of Maltese journalist Daphne Caruana Galizia found themselves embroiled in a nasty battle with a London law firm. Dubbed a “one-woman Wikileaks” for her exposures of corruption among Malta’s elite Caruana Galizia had faced 42 civil libel cases and five criminal libel cases while alive. These cases passed posthumously to her family. One of them came from a company that had headquarters in London, meaning they could bring legal action there.
“It was like falling further into a pit,” her son Matthew told me over the phone from Malta. “I never imagined I’d be battling these [legal threats]. Everything that could happen to make the situation worse did happen,” he said.
The UK’s libel laws are notoriously open to abuse (as was reported by openDemocracy yesterday) – and London law firms have been at the beck and call of the powerful worldwide. Cases like Caruana Galizia’s have a name – SLAPPs. An acronym for “strategic lawsuits against public participation”, these heavy-handed legal actions seek to intimidate and deter journalists. Their purpose is not to address genuine grievances but to drain targets of as much time, money and energy as possible in an effort to silence them – and to dissuade other journalists from similar investigations.
The laws are also known to be claimant-friendly, especially those in England and Wales where the burden of proof required from a publisher is enormous, often impossible, effectively meaning the accused is guilty until proven innocent. It’s this quirk, combined with exorbitant fees for both parties, which has made London a SLAPPs breeding ground. A 2020 survey of reporters across 41 countries found the UK was the source of 31% of legal threats against journalists. The USA, by contrast, accounted for 11%, and all EU countries combined for 24%.
But the loopholes in UK law might be closing, finally starving firms that have grown fat on oligarchs’ money. A set of reforms were announced last summer that seek to limit the impact of SLAPPs. The reforms are twofold: first, stop cases before they get to court through a series of tests. Do they go against activity in the public interest, for example? If so, throw them out. Next, cap fees for those cases that do make it through.
Half a year on we are still waiting for reforms that, frankly, can’t come fast enough. SLAPPs have long cast a dark shadow over the UK’s media and publishing landscape. 2022 alone saw the climax of big legal actions against Guardian and Observer journalist Carole Cadwalladr, who was taken to court by multimillionaire Brexit backer Arron Banks as a result of a comment she made on a TEDTalk in Canada, FT journalist Tom Burgis, author of Kleptopia: How Dirty Money is Conquering the World, which led to defamation charges by Kazakh mining giant ENRC, and former Reuters journalist Catherine Belton, who was sued over a number of matters in her book Putin’s People: How the KGB took back Russia and then took on the west, by multiple Russian billionaires, including Roman Abramovich.
Neither Burgis’ nor Belton’s cases made it to a full trial. Burgis’ was dismissed by a judge, while Belton settled after revisions were made to her book. Cadwalladr was less lucky. A trial at London’s High Court took place. At the time she said she feared losing her home and bankruptcy. She managed to crowdfund nearly £600,000 to cover costs, and the judgement ruled in her favour in June (although Banks has since been granted permission to appeal).
Yet even these victories are Pyrrhic ones. In a testimony given in the UK’s House of Commons after his case was dropped, Burgis said: “There is money that will not be got back that could have been spent on other books.”
He added:
“There is always a danger, as I know from conversations with colleagues, that you become an expensive and problematic journalist. In an era when the newspaper business model remains broke and oligarchs are amassing more and more wealth, this inequality of arms is extraordinary.”
Out of the spotlight plenty more battle away, ones with far less funding and backing. Journalists at Swedish business and finance publication Realtid, for example, were recently sued in London in connection with their investigation into the financing of energy projects involving a Swedish businessman. Faced with the prospect of financial ruin, just last week, on 13 January, it was announced that they had settled out of court, on condition that they published an apology.
It’s not just the personal toll on these journalists that is deeply concerning; it’s the industry-wide cost. Fear of legal threats is as damning as the threats themselves. Like the guillotine in revolutionary France, it hovers overhead. Do you meet with the whistleblower whose story might land you a Pulitzer, but also might land you in court? I’ve spoken to editors at desks who have become too scared to touch certain topics; a single strongly-worded letter from a minted London law firm is all it takes to spike an article. A top journalist in the UK, now in his 60s who has reported all over the world, told me that he’s never operated in a more fearful media environment than this. Covering your back is exhausting and the risk of humiliation high too. It demands nerves of steel and a sizeable chunk of liability insurance to boot. Young journalists, small media outfits and freelancers are basically counted out.
How many stories have never seen the light and what information are British readers being deprived of? Speaking at a House of Lords Committee back in April, Thomas Jarvis, legal director at Harper Collins, said the publisher regularly avoids publishing information in books in the UK that would be included in international editions because “the risk of publication in the UK is far greater”. This came from the publisher behind both Belton and Burgis’ books, with a proven record to take risks.
Burgis told me that he feels “incredibly lucky to have been backed so bravely” by his publishers. At the same time he’s angry about “all the information of vital public interest that gets suppressed because there is often today such inequality of arms between journalists (incredibly poor) and the powerful (increasingly rich).”
There’s now a real opportunity for change. The war in Ukraine catapulted SLAPPs to the forefront. With some cases being brought by oligarchs and kleptocrats with links to Putin, there has never been a less fashionable time to be a claimant. The UK also has a new head of state and a new prime minister. What better way to show their commitment to democracy than by closing the legal loopholes.
The tide has been turning against SLAPPs for some time. In early 2021, the UK Anti-SLAPP Coalition emerged, made up of NGOs, individual campaigners and lawyers, co-founded and led by Index. It helped pave the wave for the proposed legislation. Through the coalition’s efforts and a changing international landscape British MPs have started to take SLAPPs seriously. So why not push this legislation across the finish line? Today it stubbornly remains just a proposal, rather than a reality. And, speaking to Gill Phillips, director of editorial legal services at the Guardian, she confirmed some of my fears if it does get passed – namely the devil will be in the detail – and the detail has yet to be finessed. No “definition” of public interest, for example, has been provided. Nor is there a clear definition of what constitutes a SLAPP. This might appear like semantics, but in the case of Cadwalladr the judge didn’t deem the case as SLAPP, a judgment that perplexed many.
Still, all those involved in the Coalition welcomed the proposals when they were first mooted, as did Matthew Caruana Galizia.
“What the government is doing is putting a flag up a pole” he said. He thinks the proposals are good and if passed will improve the situation. He adds though that “we can go further”.
“I say ‘we’ not as a UK citizen – I’m a citizen of Malta – but ‘we’ because ‘we’ all suffer as a result of what the British courts allow. They’ve become a platform to stop investigative journalism.”
Let’s dismantle this platform in 2023. It’s high time to end the trial of media freedom.
29 Nov 22 | News and features, Statements, United Kingdom
29 November 2022
To the Rt. Hon. Dominic Raab MP
Deputy Prime Minister and Lord Chancellor and Secretary of State for Justice
Copies sent to:
Rt. Hon. Dominic Raab, Deputy Prime Minister and Lord Chancellor and Secretary of State for Justice
Rt. Hon. Rishi Sunak MP, Prime Minister of the United Kingdom
Rt. Hon. Michelle Donelan MP, Secretary of State for Digital, Culture, Media and Sport
Rt. Hon. James Cleverly MP, Secretary of State for Foreign, Commonwealth and Development Affairs
Mr. Steve Reed MP, Shadow Labour Secretary of State for Justice
Rt. Hon. Alistair Carmichael MP, Liberal Democrat Spokesperson for Home Affairs, Justice and Northern Ireland
Ms. Anne McLaughlin MP, Shadow SNP Spokesperson (Justice)
Mr. John Penrose MP, UK Government Anti Corruption Champion
Mr. Paul Philip, Chief Executive, Solicitors Regulation Authority
Mr. Mark Neale, Director-General, The Bar Standards Board
Ms. Dunja Mijatović, Council of Europe Commissioner for Human Rights
Ms. Teresa Ribeiro, Organization for Security and Co-operation in Europe, Representative on Freedom of the Media
Ms. Irene Khan, United Nations Special Rapporteur on on the Promotion and Protection of the Right to Freedom of Opinion and Expression
Re: Adoption of a UK Anti-SLAPP Law
As a group of leading editors, journalists, publishers, lawyers and other experts, we are writing to express our support for the Model UK Anti-SLAPP Law launched this November by the UK Anti-SLAPP Coalition – and to urge you to move swiftly to enshrine these proposals in law.
Events over the past year have shone a light on the use of abusive lawsuits and legal threats to shut down public interest speech. This is a problem that has long been endemic in newsrooms, publishing houses, and civil society organisations. In an age of increasing financial vulnerability in the news industry, it is all too easy for such abusive legal tactics to shut down investigations and block accountability.
We welcome your commitment to bring in reforms to address Strategic Lawsuits Against Public Participation (SLAPPs), as you said on 20 July 2022, in order to “uphold freedom of speech, end the abuse of our justice system, and defend those who bravely shine a light on corruption.” High-profile cases – such as those targeting Catherine Belton, Tom Burgis, Elliot Higgins, and more recently openDemocracy and The Bureau of Investigative Journalism – are just the most visible manifestation of a much broader problem which has affected newspapers across Fleet Street and the wider UK media industry for many years.
The public interest reporting targeted by SLAPPs is vital for the health of democratic societies, including law enforcement’s ability to investigate wrongdoing promptly and effectively. This is of acute importance in the UK, which journalistic investigations have repeatedly shown to be a hub for illicit finance from kleptocratic elites. As of April 2022, the National Crime Agency (NCA) has estimated the scale of money laundering impacting the UK is in excess of £100bn a year.
Journalism has a huge role to play in tackling this problem. For example, investigations by the Organized Crime and Corruption Reporting Project (OCCRP) into the ‘Azerbaijani Laundromat’ scandal supported the NCA in seizing millions in corrupt funds from a number of individuals, including £5.6 million from members of one Azerbaijani MP’s family. Prior to the NCA’s seizure, the same MP had spent two years pursuing Paul Radu, co-founder of OCCRP through London’s libel courts. The inequality of arms in such cases is clear. As Radu notes: “The people suing journalists in the UK rely on these huge legal bills being so intimidating that the journalists won’t even try to defend themselves.”
In March 2022, at the launch of the Government consultation on SLAPPs, you stressed that “The Government will not tolerate Russian oligarchs and other corrupt elites abusing British courts to muzzle those who shine a light on their wrongdoing.” The findings of the consultation, published in July, clearly stated that “the type of activity identified as SLAPPs and the aim of preventing exposure of matters that are in the public interest go beyond the parameters of ordinary litigation and pose a threat to freedom of speech and the freedom of the press.”
Fortunately, there is an oven-ready solution to this problem. The Model Anti-SLAPP Law, drafted by the UK Anti-SLAPP Coalition in consultation with leading media lawyers and industry experts, would provide robust protection against SLAPPs, building on the framework proposed by the Ministry of Justice in July. Key features include:
- A filter mechanism that empowers courts to swiftly dispose of SLAPPs without the need for a subjective enquiry into the state of mind of the SLAPP filer. This mechanism should subject claims that exhibit features of abuse to a higher merits threshold.
- Penalties that are sufficient to deter the use of SLAPPs and provide full compensation to those targeted. Such penalties should take into account the harm caused to the defendant and the conduct of and the resources available to the claimant.
- Protective measures for SLAPP victims including cost protections, safeguards, and measures to reduce the ability of SLAPP claimants to weaponise the litigation process against public watchdogs.
The need could not be more urgent. Research by the Foreign Policy Centre and other members of the UK Anti-SLAPP Coalition has found that SLAPPs are on the rise and that the UK is the number one originator of abusive legal actions. In fact, the UK has been identified as the leading source of SLAPPs, almost as frequent a source as all European Union countries and the United States combined.
The EU has already taken steps, with a proposed Anti-SLAPP Directive announced in April. In the US, 34 US states already have anti-SLAPPs laws in place, and this year Congress has introduced the first federal SLAPP Protection Act. Moreover, the US has also launched the Defamation Defense Fund, recognising the impact SLAPP actions have on journalists, as they “are designed to deter them from doing their work.”
You have made clear your commitment to strengthening legal protections against these legal tactics. It is crucial momentum is not lost. We encourage you to put forward, in the earliest possible time frame, legislation in line with the model UK Anti-SLAPP Law, to ensure that the UK can keep pace and contribute to this global movement to protect against SLAPPs.
Yours,
John Witherow, Chairman, Times Media
Emma Tucker, Editor, The Sunday Times
Tony Gallagher, Editor, The Times
Victoria Newton, Editor-in-Chief, The Sun
Paul Dacre, Editor-in-Chief, DMG media
Ted Verity, Editor, The Daily Mail
Katharine Viner, Editor-in-Chief, The Guardian
Paul Webster, Editor, The Observer
Alison Phillips, Editor, The Mirror
Oliver Duff, Editor-in-Chief, i
Roula Khalaf, Editor, The Financial Times
Chris Evans, Editor, The Telegraph
Alan Rusbridger, Editor, Prospect Magazine
Ian Hislop, Editor, Private Eye
Zanny Minton Beddoes, Editor-in-Chief, The Economist
Alessandra Galloni, Editor-in-Chief, Reuters News Agency
John Micklethwait, Editor-in-Chief, Bloomberg
Drew Sullivan, Co-founder and Publisher, Organised Crime and Corruption Reporting Project (OCCRP)
Paul Radu, Co-founder and Chief of Innovation, OCCRP
Rozina Breen, CEO, The Bureau of Investigative Journalism (TBIJ)
Peter Geoghegan, Editor-in-Chief and CEO, openDemocracy
Nick Mathiason, Co-founder and Co-director, Finance Uncovered
Gerard Ryle, Director of the International Consortium of Investigative Journalists (ICIJ)
David Kaplan, Executive Director, Global Investigative Journalism Network (GIJN)
Michelle Stanistreet, General Secretary, National Union of Journalists (NUJ)
Dawn Alford, Executive Director, Society of Editors
Sayra Tekin, Director of Legal, News Media Association (NMA)
Sarah Baxter, Director, Marie Colvin Center for International Reporting
Paul Murphy, Head of Investigations, Financial Times
Rachel Oldroyd, Deputy Investigations Editor, The Guardian
Carole Cadwalladr, journalist, The Observer
Catherine Belton, journalist and author of the book, Putin’s People: How the KGB took back Russia and then took on the west
Tom Burgis, reporter and author of the book, Kleptopia: How dirty money is conquering the world
Oliver Bullough, Journalist and author
Clare Rewcastle Brown, investigative journalist and founder of The Sarawak Report
Richard Brooks, journalist, Private Eye
Matthew Caruana Galizia, Director of The Daphne Caruana Galizia Foundation
Mark Stephens CBE, Partner at Howard Kennedy LLP
Caroline Kean, Consultant Partner, Wiggin
Matthew Jury, Managing Partner, McCue Jury and Partners
David Price KC
Rupert Cowper-Coles, Partner at RPC
Conor McCarthy, Barrister, Monckton Chambers
Pia Sarma, Editorial Legal Director, Times Newspapers Ltd
Gill Phillips, Director of Editorial Legal Services, Guardian News & Media
Lisa Webb, Senior Lawyer, Which?
Juliette Garside, Deputy Business Editor, The Guardian and The Observer
Alexander Papachristou, Executive Director of the Cyrus R. Vance Center for International Justice
José Borghino, Secretary General, International Publishers Association
Dan Conway, CEO, Publishers Association
Arabella Pike, Publishing Director, HarperCollins Publishers
Joanna Prior, CEO of Macmillan Publishers International Limited
Meirion Jones, Editor, TBIJ
Emily Wilson, Bureau Local Editor, TBIJ
James Ball, Global Editor, TBIJ
Franz Wild, Enablers Editor, TBIJ
James Lee, Chair of the Board, TBIJ
Stewart Kirkpatrick, Head of Impact, openDemocracy
Moira Sleight, Editor, the Methodist Recorder
Paul Caruana Galizia, reporter, Tortoise
Tom Bergin, journalist and author
James Nixey, Director, Russia and Eurasia Programme, Chatham House
Edward Lucas, Author, European and transatlantic security consultant and fellow at the Center for European Policy Analysis (CEPA)
Sean O’Neill, Senior Writer, The Times
Dr Peter Coe, Associate Professor in Law, Birmingham Law School, University of Birmingham
Alex Wilson, Partner at RPC
George Greenwood, Investigations Reporter, The Times
Simon Bowers, Investigations Editor, Finance Uncovered
John Heathershaw, Professor of International Relations, University of Exeter
Tena Prelec, Research Fellow, DPIR, University of Oxford
Thomas Mayne, Research Fellow, DPIR, University of Oxford
Jodie Ginsberg, President, Committee to Protect Journalists
Dr Julie Macfarlane, Co-Founder, Can’t Buy My Silence campaign to ban the misuse of NDAs
Zelda Perkins, Co-Founder, Can’t Buy My Silence campaign to ban the misuse of NDAs
16 Nov 22 | Italy, News and features, Statements
Members of the Coalition Against SLAPPs in Europe (CASE), with the support of the coalition’s Italian group and Media Freedom Rapid Response (MFRR), express solidarity with Roberto Saviano who attended the first hearing in the proceedings for aggravated defamation initiated against him by current Prime Minister Giorgia Meloni. We are seriously concerned about the criminal proceedings initiated in 2021 by the current Prime Minister Giorgia Meloni, the leader of Fratelli d’Italia. Under the current provisions on defamation, Roberto Saviano risks imprisonment for his criticism of Meloni during a TV programme.
Such accusations act as a gag on freedom of expression, a fundamental right enshrined in the Italian Constitution and international law. No journalist or writer should be prosecuted for expressing their honest opinion on issues of public interest. A criminal defamation suit is not an acceptable response in a democracy, all the more so when it comes from a high ranking representative of the institution. This threat to Saviano reveals, once again, the degree of the abuse of defamation suits or SLAPPs (Strategic Lawsuits Against Public Participation) in Italy.
The lawsuit for aggravated defamation was initiated by current Prime Minister Meloni in November 2021, in response to comments made by Roberto Saviano during the episode of the TV programme Piazza Pulita which aired on 3rd December 2020. Saviano’s comment was formulated in response to the controversial rhetoric employed in recent years by the two political leaders to describe the migration emergency in the Mediterranean.
In November 2020, the NGO ship Open Arms rescued a number of displaced individuals from a shipwreck, caused by a collapsing dinghy in the Mediterranean Sea. The delayed rescue by the Italian authorities had prevented timely assistance to the survivors who were in dire need of specialist medical care, including a six-month-old infant who later died on the Open Arms. Following Piazza Pulita’s coverage of the investigation on the authorities’ delayed response, Roberto Saviano had referred to both Meloni, the then leader of Fratelli d’Italia and the Lega secretary, Matteo Salvini as ‘bastards’.
The possibility that Roberto Saviano, in his role as a writer and journalist, could incur a prison sentence for expressing his opinion on a politically sensitive issue, such as the treatment of migrants in Italy, once again draws attention to the serious inadequacies of Italian libel laws. The right to freedom of expression is enshrined in Article 21 of the Italian Constitution. Furthermore, international law and jurisprudence of the European Court of Human Rights (ECtHR) guarantees that the right to freedom of expression extends to statements and ideas that may ‘offend, shock or disturb‘ and that opinions are entitled to enhanced protection under the guarantee of the right to freedom of expression. Further, the ECtHR has clarified that public figures and, in particular, political actors must tolerate higher levels of criticism and scrutiny given their public position within society, and that in such cases criminal prosecution has a chilling effect and is violating the right to freedom of expression as guaranteed by Article 10 ECHR.
Those who express their opinion on matters of public interest should not fear nor be exposed to intimidation, conviction, or imprisonment. On this last point, the Italian Constitutional Court has made its position clear, urging lawmakers to initiate a general reform of the legislation on defamation that would bring Italian legislation in line with the standards of European and international law. With the ruling of 9 June 2020 and the decision of 22 June 2021, the Court, in line with previous judgments of the ECtHR, declared prison sentences in cases of defamation in the press unconstitutional. However, the provision of prison sentences remains in place for cases of ‘exceptional gravity’. In accordance with such provisions, Saviano still faces a custodial sentence because the formal charge is aggravated defamation.
At the conclusion of the first hearing at the Criminal Court of Rome on 15 November 2022, it was decided that the trial will be re-assigned to a new judge and adjourned to 12 December. The current Minister of Infrastructure, Matteo Salvini, has filed a petition to become a civil plaintiff. The Lega leader has also a pending defamation lawsuit initiated against Roberto Saviano in 2018: its first hearing is scheduled for 1 February 2023. Further, on 28 January 2023 another defamation trial instigated by Gennaro Sangiuliano, current Minister of Culture, awaits Roberto Saviano.
At the end of the first hearing in the Meloni case on 15th November, Saviano reiterated the central role that writers play in a democratic society: “My tools are words. I try, with the word, to persuade, to convince, to activate”. Exiting the courtroom, he argued that: “Democracy is based not only on a consensus that can lead to winning the electoral lottery, but exists if dissent and criticism are allowed. Without such premises there is no democratic oxygen”.
The perilous situation in which Roberto Saviano finds himself must also be taken into account. Life under escort, already a cause of marginalisation for journalists, was only necessary due to threats made against Saviano by organised crime and these threats should not be amplified through further threats made by high ranking politicians.
Joining the dissent expressed by Italian and European journalists’ associations, the undersigned organisations call on Prime Minister Giorgia Meloni to immediately withdraw the charges against Roberto Saviano. We support the recommendation formulated by Italian and European civil society and international organisations to the new parliament to act against vexatious complaints and to quickly adopt a comprehensive reform of both civil and criminal defamation laws in Italy. Finally, we urge Italy to bring forward legislation to tackle the use of SLAPPs in line with the EU Anti-SLAPP Recommendation of 27 April 2022. The Italian Government is also urged to give its full support to the Anti-SLAPP Directive as proposed by the European Commission.
Signed
OBC Transeuropa (OBCT)
aditus foundation
Access Info Europe
ARTICLE 19
Blueprint for Free Speech
Civic Initiatives
Civil Liberties Union For Europe
Ecojustice Ireland
European Centre for Press and Media Freedom (ECPMF)
European Federation of Journalists (EFJ)
Global Witness
Helsinki Foundation for Human Rights
Index on Censorship
International Press Institute
Irish PEN/ PEN na hÉireann
Justice & Environment
Legal Human Academy
Libera Informazione
PEN International
Presseclub Concordia
Solomon
The Daphne Caruana Galizia Foundation
Whistleblowing International Network
