Letter to Justice Secretary: Adoption of a UK Anti-SLAPP Law

29 Nov 2022 | News and features, SLAPPS hero, 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:

  1. 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.
  2. 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.
  3. 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

Banned by Beijing: Artistic Freedom and CCP Censorship in Europe

15 Nov 2022 | Artistic Freedom, China, Events

“How to protect the freedom of the individual, including that of the artist, when the limits of government power are ever expanding, is a question for the whole world.”

Chiang Seeta, exiled Chinese artist living in France

Despite the strong focus on artistic freedom in many European countries, artists based in Europe are reporting attempts at censorship by the Chinese Communist Party (CCP). The CCP has deployed extensive diplomatic pressure in an attempt to censor artwork and exhibitions. We have also identified endemic self-censorship within dissident artist communities, alongside extensive ties between Chinese companies and European museums and galleries. To investigate the current state of artistic freedom in Europe, and whether and how the CCP attempts to undermine it, Index on Censorship conducted interviews with more than 40 artists, curators, academics and experts from 10 European countries.

Join Index on Censorship as we launch our latest report titled Whom to Serve?: How the CCP censors art in Europe. We will discuss the challenges faced by artistic communities in Europe. Is art a tool for dissidents to rally around and critique authoritarianism or a soft power tool for the CCP to control the narrative? What challenges do artists based in Europe face? How can local institutions and organisations support dissident art? And what do these attempts at censorship mean for artistic freedoms in Europe more broadly?

MEET THE SPEAKERS

  • Lumli Lumlong – Hong Kong painter duo living in exile in London
  • Michaela Šilpochová – curator at the DOX Center for Contemporary Art in Prague
  • Jens Galschiøt – International artist and sculptor
  • Iverson NG – Experienced Hong Kong curator and policy advocate
  • Dr Janet Marstine – Honorary Fellow, Research Centre for Museums and Galleries, University of Leicester UK
  • Chair: Nik Williams – Policy and Campaigns Officer, Index on Censorship

When: Thursday 1  December 2022, 5.30-7pm

Where: Online

Tickets: Free, advance booking essential

Xi’s real China dream

11 Nov 2022 | Magazine, News and features, Volume 51.03 Autumn 2022, Volume 51.03 Autumn 2022, Volume 51.03 Autumn 2022 Extras

The near coincidence of two events this autumn – the World Cup in Qatar and the 20th National Party Congress in Beijing, where Chinese leader Xi Jinping will likely assume an unprecedented third term in power – represents an appropriate moment to reflect on one of Xi’s signature initiatives. Not the Chinese Dream, the Belt and Road Initiative, poverty alleviation or his anti-corruption campaign, but football.

Legend holds that a soccer-mad young Xi was so aggrieved by the “humiliation” inflicted on the Chinese national team by English club Watford at an exhibition game he attended at the Workers’ Stadium in 1983 that he determined he would redress China’s weakness in football. Decades later he declared, shortly before assuming power, that China would host and ultimately win the World Cup.

As a means to overcoming the country’s historical “national humiliation”, it was probably overly ambitious.

Nonetheless, in his first term Xi put football reform and development squarely on the national political agenda through three major policy documents promulgated between 2014 and 2016. Together they represented an overarching framework for developing a domestic sports economy, facilitating mass participation and creating an effective training ecosystem from youth levels to the national team. The long-term objective was to transform China into a “world class football nation” by 2050, a timeframe and scale of ambition that aligned with broader national objectives such as the “great rejuvenation of the Chinese nation”.

Common to Chinese policymaking, broad top-down objectives were delegated to many different institutional and private actors to design and implement, leading to much experimentation, messy ad hoc adjustment and competing interests.

Compared with many other initiatives associated with Xi’s tenure, football is a benign sector. Many concerns raised at the height of the football craze a few years ago have, as yet, proven unfounded. Chinese companies’ global sponsorship deals and the elevation of Chinese officials within international governance bodies have not made the global game any more corrupt or susceptible to parochial interests.

Chinese investors’ rush to demonstrate fealty to Xi’s football plans (or merely to secrete money offshore) led to a brief, and now largely divested, scattergun acquisition of European football clubs and assets, but the clubs and leagues survived and even though many were in globally strategic locations it did not result in additional “geopolitical influence”. Nor did the funding and construction of stadiums in Africa, though there may have been marginal “soft power” gains in facilitating the hosting of several Africa Cup of Nations tournaments.

Imposing Xi’s favourite sport across Chinese school curricula might appear heavy handed, but encouraging China’s sedentary youth to exercise and head off a public health timebomb is hardly a pernicious objective.

Football is Xi’s pet project, but criticism of the underperforming national team, the hapless Chinese Football Association (CFA) or broader reforms are subject to no more stringent censorship than anything else on the Chinese internet (contained criticism is OK, demands for systemic change or encouraging collective action is not).

It is true that Chinese football reproduces class and place-based disparities, with migrant workers, for example, less able to participate. And, prior to Covid, match-going fans were already facing increasingly strict security at stadiums, fickle owners and idiosyncratic regulatory interventions by the CFA. And yet while we should be mindful of the progressive circumscription of freedoms across Chinese society under Xi, many of the problems faced by Chinese fans are common to supporters everywhere.

That said, we should pause for a moment on the question of ethnicity, given the unprecedented crackdown on Muslims in Xinjiang that has come to define Xi’s 10 years in office. On the surface, football has become a site for advances in representation. China’s best player, Wu Lei, is a member of the Hui (Muslim) ethnic minority group. In March, Chinese-Nigerian Huang Shenghao became the first bi-racial player to represent the country (at under-17 level). Mirahmetjan Muzepper became the first Uyghur to play for the men’s national team in 2018.

The treatment of another Uyghur player, Erfan Hezim, demonstrates the systemic repression of young Uyghur men. Hezim spent almost a year in a detention camp in Xinjiang, apparently for unauthorised travel overseas to participate in football training camps, before being allowed to resume his career in 2019. Uyghurs coming through the ranks can face many forms of discrimination, partly explaining the negligible number of players in the Chinese Super League despite the popularity of football in Xinjiang. The region could be a significant source of playing talent, but the conditions there are so severely circumscribed that it is impossible to realise.

As for those from outside China’s official borders, the expedient decision to bring several naturalised Brazilians into the national team during World Cup qualifying met with only muted criticism from grassroot nationalists, even after the players’ efforts proved futile. The handling of naturalised talent, though, demonstrates an enduringly awkward official embrace of foreignness.

The CFA’s provisional regulations oblige clubs to teach naturalised foreigners Chinese language, culture and history, in addition to the fundamental political positions of the CCP. Party cadres attached to every professional club monitor, supervise and submit regular reports on players’ performance, behaviour and attitudes, reproducing the party’s longstanding “foreign affairs” system for handling foreigners. By all accounts, the naturalised Brazilians have been exemplary. But all this shows that some aspects of football’s development reflect the trajectory emerging across other social sectors during Xi’s tenure – one of a controlled society subject to the regime’s circumscriptions and vision for a desirable China.

In line with the requirements of the reform policies, infrastructure has been built and facilities rolled out on an impressive scale. But football has so far failed to become an elective mass participation sport like basketball or badminton. The popularity of gaming and the exponential growth of professional e-sports in China suggests football has its work cut out appealing to young people.

China has its fair share of dedicated supporters and “transnational fans” who are as knowledgeable and passionate about foreign clubs they will never visit as locals are. Yet the kind of intangible “football culture” that manifests in ubiquitous pick-up games on Brazilian beaches or English playgrounds has not taken root. Football schools and academies have not (yet) produced a “Chinese Messi” or even a supply of more prosaic talent, although it is premature to write off long-term efforts to build up the talent pool.

Youth participation has run afoul of resistant parents who prefer their children to focus on academics, which is intense, uber-competitive and almost certainly a better investment in the future than football. Short fee-paying football camps are the preserve of cosmopolitan middle-class parents, while serious football academies offering talent-based scholarships are mainly an option for poor families whose children are unable to compete for academic advancement. Football as a leisure activity and signifier of middle-class lifestyles embodying China’s desired “mildly prosperous” modernity has so far failed to capture imaginations.

And then came Covid and continuing “dynamic zero” restrictions to burst football’s bubble economy. With the Chinese Super League (CSL) mothballed for a time, expensively-acquired foreign players departed, and China gave up its hosting rights for the 2023 Asian Cup due to the ongoing uncertainties. Owners facing economic headwinds created by the pandemic were unable to service the continual cash injections needed to sustain clubs.

The property sector, which has become intimately entwined with football, was hit by a debt crisis and state interventions associated with Xi’s new preoccupation of ‘Common Prosperity’. Evergrande, the over-leveraged real-estate developer and owner of China’s most successful club, was forced to sell the land for its half-built new mega-stadium back to the local government. Since 2015, more than 20 clubs across the top divisions have folded, often due to insufficient organisational experience and unsustainable business models. Jiangsu FC disbanded soon after winning the CSL in 2020 when its owner, indebted retailer Suning, decided it could no longer afford it.

There is no reason why Chinese football shouldn’t find a sustainable niche as a spectator and participant sport, and a national team that can compete in Asia and qualify for international tournaments. Some of the ambitions set out in Xi’s reforms are not currently realistic, but long-term plans should be given time to unfold. A hypothetical Chinese bid to host a future World Cup, would, given Fifa’s interests and track record, prove irresistible.

The hosting of a World Cup would be a significant boost to football development in the country. But the attendant potential for “sportswashing” and requisite self-censorship have already been demonstrated on a small scale by European clubs and leagues desperate to access the Chinese market. Take the example of midfielder Mesut Özil, who was sidelined by Arsenal, which has a huge following in China, after speaking out against the persecution of Uyghurs.

The Chinese national team will not compete in Qatar later this year, but China will be present through Fifa’s signature sponsorship deal with Wanda, and Chinese fans will watch en masse, attracted by the spectacle, the conversation and the opportunities for offshore sports-betting.

Jonathan Sullivan is a Chinese specialist and an associate professor at the University of Nottingham.

This article appears in the autumn 2022 issue of Index on Censorship. To subscribe click here

Model UK Anti-SLAPP Law

6 Nov 2022 | News and features, SLAPPs, SLAPPS hero

The UK Anti-SLAPP Coalition welcomed the commitment by the Ministry of Justice (MoJ) to bring in legislative reform to tackle SLAPPs in July. While the framework proposed has the potential to provide meaningful protections against SLAPPs, much will depend on how this is fleshed out. There are three conditions in particular that we believe any effective law must meet:

CONDITION 1 – SLAPPs are disposed of as quickly as possible in court: in order to achieve this we need a new statutory mechanism that will require claims targeting public participation to meet a higher threshold in order to advance to trial. Such a threshold must be high enough to prevent such abusive lawsuits being stretched out to trial. Judges should also have discretion to filter out cases that exhibit abusive qualities or would otherwise have a disproportionate impact on freedom of expression.

CONDITION 2 – Costs for SLAPP targets are kept to an absolute minimum: costs must be awarded to targets of SLAPPs on a full indemnity basis. Since SLAPPs operate through the litigation process, however, it is important that SLAPP targets are able to see that process through to a resolution. While we recognise that the government has no plans to expand legal aid, there are other ways the costs can be minimised for those targeted by such lawsuits – including by reducing the burden of disclosure.

CONDITION 3 – Costs for SLAPP filers are sufficiently high to deter further SLAPPS: in addition to costs being made available on a full indemnity basis, exemplary damages should be available for cases where the claimant has exhibited particularly egregious conduct, and where the time and psychological harm caused to the defendant needs to be compensated. This must be proportionate to the resources available to the claimant so as to provide an effective deterrent to those using such tactics.

To achieve the above, we have drawn up a UK Model Anti-SLAPP Law in consultation with senior lawyers from across the sector. We hope this draft law, outlined overleaf, will guide the proposals currently being developed by the MoJ and will also be discussed and adopted by the devolved governments in the UK. In particular, we would point to the importance of the following three features:

● A Higher Merits Threshold: it is emphatically not enough to simply bring forward a test for summary judgement (i.e. a “real” or “realistic” prospect of success). Since a motion for summary judgement can already be led at an early stage in proceedings, an early dismissal mechanism that uses the same test will be redundant. The problem is that the summary judgement threshold is too low to filter out SLAPPs and provide meaningful protection for those targeted. Given ambiguities in laws such as defamation, it is simply too easy for a SLAPP claimants to show they have a “real” prospect of succeeding at trial. We have therefore proposed that SLAPP claimants must show a likelihood of prevailing at trial.

● Wide and Robust Criteria for Identifying Abuse: under the three-part test proposed by the MOJ (fleshed out in the model law), the early dismissal mechanism will only be triggered when a case has been identified as showing “hallmarks of abuse”. This should embolden those drafting the law to provide for a more rigorous merits test (see above), since only abusive claims will be subject to such a test. It is crucial, however, that these “hallmarks” are wide enough to cover all qualities that are indicative of an improper purpose. We have therefore proposed ten specific criteria that capture common features of SLAPPs.

● An Objective Test for Dismissal: the MOJ’s framework requires that only cases identied as having features of abuse are subject to an early dismissal mechanism. This does not require courts to identify the purpose of the lawsuit. Lawsuits led with an improper purpose can in theory already be dismissed and made subject to sanctions: the problem is that courts are too reluctant to infer such a purpose where doing so would lead to dismissal. Our objective test – requiring the court to identify abusive lawsuits (i.e. those with features of abuse) as opposed to  strategic lawsuits – would avoid the problems associated with such a subjective inquiry.

* The FPC’s support for the model law is based on the findings of the Unsafe for Scrutiny research programme and any views expressed are those of Deputy Director Susan Coughtrie

View the model law in full below:

 

 

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