Britain’s legal system silences sexual assault victims

21 Sep 2023 | News and features, Slapps, United Kingdom

Supporters of Russell Brand have been asking why the women who featured in the Dispatches documentary about the TV personality turned YouTuber took so long to come forward and why investigative journalists at The Times and The Sunday Times chose this moment to publish their revelations. The simplest and least conspiratorial answer is that running such stories about the super rich is a legal minefield in a world where the British libel courts are stacked in favour of wealthy plaintiffs. Brand is known to be litigious and several of his alleged victims claimed they were threatened with legal action if they spoke out. Brand himself denies all wrongdoing and says all the sexual relations concerned were consensual.

The risk of attracting a SLAPP (Strategic Lawsuit Against Public Participation) is very real for victims of sexual violence, as an event organised by Index on Censorship and the Bureau of Investigative Journalism in parliament this week demonstrated. Speakers included lawyers who have acted for victims and news organisations, Meirion Jones, the former BBC journalist who investigated Jimmy Savile, and Baroness Helena Kennedy. Two victims also spoke: Nina Cresswell and Verity Nevitt. Cresswell told of her fight against the libel suit brought by tattoo artist Billy Hay after she outlined in a blogpost his assault on her after a night out in Sunderland. In April of this year, a court decided that, on the balance of probabilities, she had been violently sexually assaulted. After her victory, Cresswell spoke of having a panic attack when she realised she was being sued and of the stress of the legal case. Following the verdict, Cresswell’s lawyer Tamsin Allen wrote in the Guardian: “Even after the recent judgment… there is still a clear risk that an abusive person can continue their abuse by bringing proceedings and seeking to bully a vulnerable defendant via the imposing power of the justice system. The survivor is unlikely to have the legal, financial and psychological strength to fight back. This is strategic litigation against public participation (SLAPP) par excellence – with a dash of gaslighting, personal vendetta and coercive control thrown in.”

Nevitt was sued by her assailant (who also went on to rape her twin sister on the same day) after she wrote about the assaults on social media. Nevitt told the Guardian: “I felt completely powerless and silenced because it was so difficult. The whole process is so degrading and disempowering.” MP Jess Phillips raised the issue in parliament earlier this year.

Commenting this week Jessica Ní Mhainín, head of policy and campaigns at Index, says: “There was already widespread alarm among legislators and researchers that the law could be weaponised – in the form of SLAPPs – to inflict further trauma on victims of sexual violence. The latest news does nothing to assuage our concerns.”

Questions have already been asked about the chilling power of legal threats in the Russell Brand case. At the same time, it is an important point of legal principle that Brand is entitled to defend his reputation if he believes he has been wrongly accused of serious wrongdoing.

In 2007 Brand received substantial undisclosed damages from Express newspapers after an article appeared in the Daily Star alleging that a young woman was drugged and raped at a flat rented by the comedian during the Edinburgh Festival. Brand’s lawyer said at the time: “The meaning of the article was that there were reasonable grounds to suspect that the claimant drugged and raped a young woman. This was totally untrue.”  He added: “The claimant was never suspected of the alleged rape nor was there any evidence at all to involve him in its circumstances. Rather, at the police’s request he assisted them as a witness.”

Express Newspapers apologised and paid an undisclosed sum to Brand, as well as paying his legal fees.

Meanwhile, Index will continue to campaign against the use of SLAPPs. News from the past week shows how disparate the victims are and how urgent it is to address a legal system so open to abuse.

Over 60 editors, journalists, writers, publishers and experts call on the UK Government to commit to a standalone anti-SLAPP law

21 Sep 2023 | News and features, Slapps, United Kingdom

Over 60 editors, journalists, writers, publishers, academics and experts, including the CEOs of ITN and Pan Macmillan, as well as the editors of The Guardian, The Telegraph, The Sun, The Times and The Sunday Times, the Financial Times, Bloomberg, Private Eye, Tortoise and The Mirror have written to Justice Secretary Alex Chalk KC MP to request that a standalone anti-SLAPP Bill is included in the King’s Speech. The letter has been sent ahead of the King’s Speech on 7 November, in which the Government will outline its priorities for the forthcoming parliamentary session.

The Government has already committed to bring forward a package of measures that take aim at Strategic Lawsuits Against Public Participation (SLAPPs). Launching the commitment in July 2022, the former Justice Secretary, Dominic Raab said: “I’m announcing reforms to uphold freedom of speech, end the abuse of our justice system, and defend those who bravely shine a light on corruption.” However, over a year after that commitment was made there has been little progress towards universal protection against SLAPPs. While limited anti-SLAPP provisions have been included in a recent amendment to the forthcoming Economic Crime and Corporate Transparency Bill, this is only a partial victory.

“As an important part of the global financial system, it is vital that the UK ensures journalists and public watchdogs are able to continue their work without risking legal harassment. However, this amendment does not go far enough as it only covers claims relating to the ‘public interest in protecting society from economic crimes’” the signatories said in their letter to the Justice Secretary. “It also introduces an unnecessary element of uncertainty by making the operation of the law contingent on the belief of the defendant and the perceived purpose of the filer.”

As this King’s Speech is the last to take place during this Parliament and before the expected next general election, it is the last opportunity for this Government to realise its commitment to stamp out SLAPPs. The UK Anti-SLAPP Coalition’s Model Anti-SLAPP Law produced with support from leading legal and industry experts, provides a road map towards protecting public watchdogs from legal harassment. Index on Censorship is a co-chair of the UK Anti-SLAPP Coalition which coordinated and sent the letter.

“ITN supports this initiative as an organisation committed to ensuring that journalists can undertake public interest investigations without fear of harassment or financial penalty. ITN’s motto is to bring truth to life, which is based on 67 years of independent journalism, and the belief that stories we can trust empower us all. An Anti-SLAPP Bill would signal to the world that the UK proudly supports journalism that can ask difficult questions and hold power to account and ultimately improve the world we live in.”

Rachel Corp, CEO of ITN

“This campaign to address the misuse of libel laws to the detriment of serious journalism is gathering the momentum it deserves. This country is unique in the hurdles it presents for public interest investigations and the chilling effect of its law before stories are even published. Independent, fearless journalism comes at a premium and our laws should not be used as an additional obstacle to publication.”

Pia Sarma, editorial legal director at Times Newspapers Ltd

“Until there are serious legislative steps, taken by Parliament to address the abuse of the UK legal system to target journalists, it’s safe to assume those abuses will continue. My own case demonstrates the absurdity of the current situation, and inaction at this stage is nothing less than complicity in the further abuse of the UK legal system, and a sad reflection on the inability of the British government to take blindingly obvious action on protecting fundamental democratic principles.”

Eliot Higgins, founder of Bellingcat

“SLAPPs are a real and growing threat to democracy, and we will all benefit from protecting journalists against these abusive lawsuits.”

Paul Caruana Galizia, reporter at Tortoise

“Many victims of sexual violence already go through immense amounts of internalised shame, especially when failed by the justice system. As a result, social media is now often sadly our last hope to protect others from abuse. But now, when we finally dare speak, we’re punished by SLAPP threats that are designed to destroy. It’s not a fair fight.”

Nina Cresswell, journalist, writer and former SLAPP target

The letter and list of signatories are below. Alternatively click here to read a PDF version

 

Sent Electronically

 

Mr. Alex Chalk KC MP, Secretary of State for Justice

Rt. Hon. Rishi Sunak MP, Prime Minister of the United Kingdom 

Rt. Hon. Lucy Frazer KC MP, Secretary of State for Digital, Culture, Media and Sport

Rt. Hon. James Cleverly MP, Secretary of State for Foreign, Commonwealth and Development Affairs

Ms. Shabana Mahmood MP, Shadow Labour Secretary of State for Justice

Rt. Hon. Alistair Carmichael MP, Liberal Democrat Spokesperson for Home Affairs, Justice and Northern Ireland

Mr. Chris Stephens MP, Shadow SNP Spokesperson (Justice)

Mr. Paul Philip, Chief Executive, Solicitors Regulation Authority

Mr. Mark Neale, Director-General, The Bar Standards Board

Mr. Matthew Hill, Chief Executive, Legal Services 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

 

20 September 2023

Dear Alex Chalk KC MP,

We call on you to include an Anti-SLAPP law in the King’s Speech

We joined the UK Anti-SLAPP Coalition in welcoming the UK Government’s commitment to address Strategic Lawsuits Against Public Participation (SLAPPs) and their impact on the British justice system. However, we remain concerned by the lack of meaningful progress since the announcement in July 2022. The inclusion of  a commitment in the forthcoming King’s Speech to bring forward a standalone Anti-SLAPP Bill will be an unequivocal statement that the UK Government is committed to stamp out SLAPPs.

We support the anti-SLAPP amendment to the Economic Crime and Corporate Transparency Bill as a significant step in the right direction to protect public interest reporting on economic crime. As an important part of the global financial system, it is vital that the UK ensures journalists and public watchdogs are able to continue their work without risking legal harassment. However, this amendment does not go far enough as it only covers claims relating to the “public interest in protecting society from economic crimes”. It also introduces an unnecessary element of uncertainty by making the operation of the law contingent on the belief of the defendant and the perceived purpose of the filer. The Government itself has acknowledged the current amendment as “the first step in cracking down on SLAPPs used to limit freedom of speech,” not the full realisation of its commitment.

Therefore, the next step must be a standalone Anti-SLAPP Bill to extend protections to everyone who speaks out in the public interest. The UK Anti-SLAPP Coalition has demonstrated how this can be done with their Model Law which we shared with your office last year. As a result, there is no reason why a standalone Anti-SLAPP Bill shouldn’t be included in the King’s Speech. Only with the fulfilment of a universally applicable law will the Government’s commitment be realised.

Many of the cases that have been monitored by the Coalition would have been unaffected by the proposed amendment. This includes the legal threat from the Russian warlord Yevgeny Prigozhin against Bellingcat founder Eliot Higgins, ENRC’s SLAPP action against journalist and author Tom Burgis and the defamation action brought against Nina Cresswell by her abuser after she bravely spoke out to protect other women, to name but a few. Cases like these demonstrate the need for an anti-SLAPP bill that protects everyone speaking out.

The Government will, in its own words, “set out further legislation beyond economic crime when parliamentary time allows.” This can only happen if an Anti-SLAPP Bill is included in the King’s Speech, which will outline the Government’s programme of work in the coming Parliamentary session. This would be the last opportunity to realise the commitment before the expected general election.

Addressing this issue has broad public and political support and represents a significant opportunity to protect free speech and shield British courts from abuse.

Kind regards,

Rachel Corp, CEO, ITN

Alison Phillips, Editor, The Mirror

Chris Evans, Editor, The Telegraph

Katharine Viner, Editor-in-Chief, The Guardian

Victoria Newton, Editor-in-Chief, The Sun

Paul Webster, Editor, The Observer

Roula Khalaf, Editor, The Financial Times

Tony Gallagher, Editor, The Times

Ben Taylor, Editor, The Sunday Times

John Micklethwait, Editor-in-Chief, Bloomberg

Ian Hislop, Editor, Private Eye

Alan Rusbridger, Editor, Prospect Magazine

Zanny Minton Beddoes, Editor-in-Chief, The Economist

Julian Richards, Managing Editor, openDemocracy

Oliver Duff, Editor-in-Chief, i

Rozina Breen, CEO, The Bureau of Investigative Journalism (TBIJ)

Drew Sullivan, Co-Founder, Organized Crime and Corruption Reporting Project (OCCRP)

Paul Radu, Co-Founder, OCCRP

Eliot Higgins, Founder, Bellingcat

James Harding, Founder & Editor, Tortoise

Franz Wild, Editor, TBIJ

Joanna Prior, CEO, Pan Macmillan

Arabella Pike, Publishing Director, HarperCollins UK

Dan Conway, CEO, Publishers Association

José Borghino, Secretary General, International Publishers Association

Michelle Stanistreet, General Secretary, National Union of Journalists (NUJ)

Sayra Tekin, Director of Legal, News Media Association (NMA)

Dawn Alford, Executive Director, Society of Editors

Gill Phillips, Editorial Legal Consultant, Guardian News & Media

Pia Sarma, Editorial Legal Director, Times Newspapers Ltd

Adam Cannon, Director of Legal, NGN

Sarah Baxter, Director, Marie Colvin Center for International Reporting

Rachel Oldroyd, Deputy Investigations Editor, The Guardian

Juliette Garside, Deputy Business Editor, The Guardian

Stewart Kirkpatrick, Head of Impact, openDemocracy

Chrissie Giles, Deputy Editor, TBIJ

Richard Sambrook, Co-Chair of the Board, TBIJ

Isabel Hilton, Co-Chair of the Board, TBIJ

Mark Stephens CBE, Partner, Howard Kennedy LLP

Matthew Jury, Managing Partner, McCue Jury and Partners

Caroline Kean, Consultant Partner, Wiggin

David Price KC

Rupert Cowper-Coles, Partner, RPC

Paul Caruana Galizia, Reporter, Tortoise

Oliver Bullough, Journalist and author

Peter Geoghegan, Journalist and author

Carole Cadwalladr, Journalist, The Observer

Catherine Belton, Journalist and author of Putin’s People: How the KGB took back Russia and then took on the west

Richard Brooks, journalist, Private Eye

Meirion Jones, investigative journalist

Sean O’Neill, Senior Writer, The Times

George Greenwood, Investigations Reporter, The Times

Clare Rewcastle Brown, Investigative Journalist and Founder, The Sarawak Report

Nina Cresswell, Writer and journalist

Matthew Caruana Galizia, Director, The Daphne Caruana Galizia Foundation

Jodie Ginsberg, President, Committee to Protect Journalists

Alexander Papachristou, Executive Director, Cyrus R. Vance Center for International Justice

Zelda Perkins, Co-Founder, Can’t Buy My Silence campaign to ban the misuse of NDAs

Dr Julie Macfarlane, Co-Founder, Can’t Buy My Silence campaign to ban the misuse of NDAs

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)

John Heathershaw, Professor of International Relations, University of Exeter

Dr Tena Prelec, Research Associate, LSEE Research on SEE, LSE

Dr Peter Coe, Associate Professor in Law, Birmingham Law School, University of Birmingham

Thomas Mayne, Research Fellow, University of Oxford

Parliament’s China spying scandal breaks the bond of trust

15 Sep 2023 | China, Hong Kong, News and features, United Kingdom

This week it emerged that a British parliamentary researcher who worked closely with senior MPs, working on UK security issues, had been arrested for espionage on behalf of the Chinese state. While the allegations have been denied, the focus of the coverage this week has been largely on the implications for UK security and the acknowledgement of the threats of Chinese spying on UK institutions.

However, there are some other serious consequences. At Index, we have reported on the long-arm of Chinese repression and their targeting of dissidents abroad. Our Banned by Beijing reports have focused on the influence of the Chinese state in the academic sphere through Confucius Institutes and funding in UK universities. The threat to academic freedom is serious enough.

At Index, we rely on the testimonies of dissidents to expose what is happening in repressive regimes where dictators and tyrants oppress the media and their peoples in order to maintain tight control. We can only achieve this through close relationships based on trust. They have to be convinced that we will do everything we can to keep them safe and that by speaking to us their situation and that of their families will be protected. We take that responsibility very seriously.

Dissidents have to feel that they are safe to discuss their experiences with Parliamentarians and not worry about their reports getting back to any regime, including the Chinese state, they have to be assured that by speaking privately to decision makers they will not be endangering their families remaining in China.

Our Banned by Beijing reports have repeatedly exposed how the CCP has targeted the families of dissidents as a tool to try and coerce people into silence. Privacy and security is vital for many dissidents to feel comfortable explaining their experiences; but for that they need to trust us.

My fear is that this scandal will undermine information gathering as the trust between Parliament and Chinese dissidents will have been broken. And it isn’t just a matter for those of us who have an interest in the repression dished out by the CCP, it is also a matter of huge concern for those of us who want dissidents to feel safe, wherever they come from.

Dissidents who have fled their country to shine a light on repression have left their lives behind. They have made huge sacrifices in order to excise their freedom of speech. They have done it so that their voices can be heard and the tyrant that runs their country can be exposed. Historically the saftest place to do that has been the British Parliament – where MPs have privilege and use the stories of dissidents to challenge the status quo. By undermining this bond of trust those who spy for a despotic regime haven’t just undermine the cause of Chinese dissidents – they have undermined the cause of all dissidents.

That trust must be rebuilt as a matter of urgency.

“An attack on encryption unprecedented in any democracy” 

8 Sep 2023 | News and features, Opinion, Ruth's blog, United Kingdom

Cast your mind back to January 2023, and the “world-leading, world-first Online Safety Bill” (Rishi Sunak responding to Labour’s Alex Davies-Jones) faced a significant backbench rebellion over an executive liability clause.

When the Bill landed in the House of Lords days later, a precarious agreement between Government and rebels had passed on a vast baton of legislative issues. There was a collective sigh of relief that the upper chamber would be taking on the mantle.

The threat to encryption, or private messaging, didn’t even feature as a concern amongst legislators, let alone the government, despite the Bill introducing measures unprecedented in any western democracy.

Flash forward to September, and encryption features as the most important and urgent issue that needs addressing before the Online Safety Act receives imminent Royal Assent.

The efforts of my colleagues at Index on Censorship, partners across civil society, and the businesses that rely on encryption have all been vital in achieving this.

Confidence in the Government’s ability to grasp the full consequences and details of their legislation has waned thin. Index and others have consistently warned that Section 122 of the Act is a gateway to the unprecedented mass-surveillance of British citizens and a threat to vulnerable people up and down the country.

As Index on Censorship’s report with Matthew Ryder KC set out:

  • Section 122 notices install the right to impose technologies that would intercept and scan private communications on a mass scale. The principle that the state can mandate the surveillance of millions of lawful users of private messaging apps should require a higher threshold of justification which has not been established to date.

  • Ofcom could impose surveillance on all private messaging users with a notice, underpinned by significant financial penalties, with less legal protections than equivalent powers under the Invetsigatory Powers Act.

  • The proposed interferences with the rights of UK citizens arising from surveillance under the Bill are unlikely to be in accordance with the law and are open to legal challenge.

  • Journalists will not be properly protected from state surveillance, risking source confidentiality and endangering human rights defenders and vulnerable communities.

From raising awareness of encryption in public debate, demonstrating its real-world effects for policy makers, to highlighting the unintended legal and technological consequences of the Bill, we finally have a Government that is at least not running head first into an attack on encryption that would be unprecedented in any democracy.

But the encryption die remains far from cast. Reports in the FT and elsewhere alluded to a Government ‘u-turn’ ahead of a Ministerial statement on Wednesday (6 September) that delivered nothing of the sort.

While some in the Government are briefing that encryption will be protected, the actions of its ministers do not match up to those words.

A new report by Index on Censorship this week revealed that that Online Safety Bill has alarming consequences when put alongside the controversial Investigatory Powers Act (snooper’s charter). This access, unprecedented in any Western democracy, could provide the Home Office with entry to British citizens’ personal messages as follows:.

  • Ofcom issues notice mandating the use of Accredited Technology to provide a backdoor to encrypted messages under the Online Safety Bill (section 122)

  • The Home Office or security services apply for a bulk surveillance warrant on account of a matter of national security (Investigatory Powers Act) granting them access to bulk data

This is extremely concerning, not least because the window in which the Government can legislate its way out of this mess is rapidly closing. The Online Safety Bill will return to the House of Commons for the first time in eight months on Monday (11 September) for a consideration of Lords’ amendments.

This is the last and only chance the Government has to follow up words with actions. They must go beyond Wednesday’s ministerial statement and allay the concerns once and for all by amending the Bill’s Section 122 notices as well excluding use of the IPA in conjunction with the Bill.

Our report sets out how the government can get this right. We’re running out of time. We hope that the government will see sense and put down amendments to fix the backdoor in the Online Safety Bill.