First, the good news on press freedom in the UK. For all journalists who have been on the receiving end of a mauling from the libel lawyer attack dogs, 2022 got off to a great start.
Protected by libel-proof parliamentary privilege, MPs named and shamed the London law firms and lawyers who acted for Russian oligarchs using libel actions to stop journalists investigating their wealth and businesses. The war in Ukraine not only put the oligarchs under scrutiny but the way the libel laws have been used to stifle a free press.
David Davis MP in the Commons raised the use of SLAPP libel actions, civil lawsuits brought by powerful individuals or companies that have little legal merit and are designed to harass journalists. Davis said: “This is lawfare – lawfare against British freedom of speech, lawfare against the freedom of the press, and lawfare against justice for our citizens. Lawfare is the misuse of legal systems and principles by extraordinarily rich individuals and organisations to destroy their critics and opponents. In many cases, our reporters face reputational and financial ruin in defending themselves from these malevolent cases; even if they win, the expense and impact are huge. The chilling effect on a free press is extraordinary.”
Journalists Catherine Belton, author of Putin’s People, and Tom Burgis, author of Kleptopia, told the Foreign Affairs Select Committee that legal firms in London were working to intimidate journalists into dropping stories about Russian oligarchs, who could afford prolonged legal action. Burgis named Carter-Ruck, Schillings, Mishcon de Reya and Taylor Wessing.
Many UK journalists will have identified with publishing director Arabella Pike, of HarperCollins, publisher of Putin’s People and Kleptopia, who wrote in the Sunday Times of the strain of lengthy libel actions: “You need a spine of titanium to withstand the pressures of litigious billionaires. I think we all suffered sleepless nights, exhaustion and feelings of being stuck in a process that would never end. The letters are crafted to undermine confidence in yourself and your work. The financial costs are huge, but so are the psychological.”
HarperCollins spent £1.5 million defending Putin’s People.
Financial Times editor Roula Khalaf giving this year’s Hugh Cudlipp Lecture in May warned: “In the UK, the legal intimidation of journalists by wealthy individuals and corporations has become more prevalent and professionalised.” She argued: “What we need is a reformed, more effective public interest defence.”
The justice secretary, Dominic Raab, is consulting on changes to the 2013 Defamation Act to make it more difficult for powerful individuals and organisations to use SLAPPs. The changes could include strengthening the public interest defence in clause 4 of the Defamation Act; capping the costs claimants can recover; and the introduction of a requirement for claimants to prove “actual malice” in libel cases. Courts could also gain the ability to throw out SLAPP cases earlier in proceedings and use civil restraint orders to stop people from bringing repeated cases. Raab promised: “We’re taking action to put an end to this bullying and protect our free press.”
More good news came in June when Arron Banks lost his libel action against the Observer and Guardian journalist, Carole Cadwalladr, after Mrs Justice Steyn accepted her public interest defence. Millionaire Banks, who funded the pro-Brexit Leave.EU campaign, sued Cadwalladr personally over two instances in which she said the businessman was lying about his relationship with the Russian state – one in a Ted Talk and the other in a tweet. If Banks had won the case, the journalist faced a legal bill of up to £1m. Before the verdict, Cadwalladr argued: “Singling out a journalist from their news organisation and putting them on trial is not what happens in healthy, functioning democracies.” Paul Webster, editor of The Observer, and Katharine Viner, Guardian News & Media editor-in-chief said: “We believe this case was an example of a powerful wealthy person targeting an individual journalist for their work. Carole Cadwalladr’s victory in this case is an important step in defending the rights of journalists to report in the public interest.” Banks indicated he would appeal.
Protecting sources victory
In March, Judge Lucraft ruled journalist and former MP Chris Mullin did not have to reveal the sources of his investigation into the Birmingham pub bombings to West Midlands Police. Mullin said: “The right of a journalist to protect his or her sources is fundamental to a free press in a democracy. My actions in this case were overwhelmingly in the public interest. They led to the release of six innocent men after seventeen years in prison, the winding up of the notorious West Midlands Serious Crimes Squad and the quashing of a further 30 or so wrongful convictions.”
The ruling was welcomed by NUJ general secretary Michelle Stanistreet who said: “This case threatened press freedom and amounted to another attempt to criminalise the legitimate actions of journalists.”
The huge expense of libel actions remains a block on press freedom. The libel action against The Sunday Times by ex-MP Charlie Elphicke, who was accused by a woman of rape, was dropped in March after four years. The Sunday Times wrote in a leader: “Without the determination of The Sunday Times, which, under siege by Carter-Ruck, has spent more than £500,000 defending itself over the original 2018 articles, the story would have been snuffed out entirely. Everyone deserves the right to protect their reputation. Yet where is the proportionality? A four-year pre-trial period and a law firm working on a conditional fee arrangement add up to huge costs for the defendant. The Elphicke case emphasises the need for urgent reform. At present, bullies can too easily hire rottweilers like Carter-Ruck to kill off stories everyone should be able to read.”
In February, the Supreme Court ruled against Bloomberg News in a privacy case seen as making it harder for the UK media to publish information about individuals subject to criminal investigations. In 2016, Bloomberg named an American business executive at a large public company who was facing a criminal inquiry by a British regulator. The executive sued. The case had to decide on how to balance the businessman’s right to privacy with Bloomberg’s right to freedom of expression. After six years of legal argument and appeals, the Supreme Court decided in favour of the business executive. The Guardian’s Jim Waterson pointed out after the ruling: “British media outlets – at the tabloid end of the market and in high-end financial news – increasingly find that privacy law, rather than the risk of libel, is one of the biggest barriers to publication of stories.” It is thought the various court rulings on privacy contributed to the media not naming the Conservative MP who was arrested in May on suspicion of rape. Sun editor-in-chief Victoria Newton claimed if the Sun had reported the MP’s name it could have faced a £1m legal bill if he was not charged.
Bill of Rights
Publishers see an opportunity in the government’s plan to replace the Human Rights Act with a Bill of Rights to counter the growing use of privacy law. In response to a Justice Department consultation, publishers of The Times, Telegraph, Mail and i newspapers claimed: “Judges’ increasing tendency to favour privacy over freedom of speech had been of grave concern to the media.” The Daily Mail argued: “Under the Human Rights Act, judges are meant to balance privacy against the public right to know. But too often, oligarchs and others with secrets use the courts to suppress legitimate journalistic inquiries.” The publishers recommended judges “be obliged to take into account the general public benefit of a free media, as well as the public interest in the specific story at issue.”
The Johnson government has been accused of having media favourites and punishing those it does not like by refusing them briefings and interviews. In April, journalists from the Guardian, Financial Times and Mirror claimed they were all blocked from joining home secretary Priti Patel’s trip to Rwanda. It was also revealed that Donald Trump was asked by the prime minister to cancel a planned interview with Piers Morgan on Good Morning Britain shortly before the last general election. Trump told Morgan in an interview on TalkTV he was a guest of Mr Johnson and did what he was asked.
Freedom of Information
MPs drew attention to the controversial “clearing house”, the Cabinet Office unit that co-ordinates responses to Freedom of Information requests across government, which has been accused of blacklisting journalists. A report by the Public Administration and Constitutional Affairs Committee revealed rising FoI waiting times, poor practices, declining trust in the government’s responses and a soaring number of complaints to the regulator. PACA chairman William Wragg wrote in The Times: “The fact that the Cabinet Office announced an internal review into the clearing house the day before publication of our report, after eight months of dither and delay, says less about its commitment to transparency and more about news management.”
Angela Rayner row
In April, press freedom was raised as an issue following the furious reaction to the Mail on Sunday reporting claims that Labour’s Angela Rayner tried to distract Boris Johnson in the Commons by crossing her legs like Sharon Stone in the film Basic Instinct. Such was the anger in parliament, the speaker, Sir Lindsay Hoyle, called for a meeting with the paper’s editor David Dillon and political editor Glen Owen. Dillon replied to the Speaker: “Britain rightly prides itself on its free press. That freedom will not last if journalists have to take instruction from officials of the House of Commons, however august they may be, on what they can report and not report. I am afraid I and Glen Owen must now decline your invitation.” Whatever one thought of the Rayner story, the fact that a newspaper editor can snub parliament must say something about press freedom in the UK. In other countries, an editor showing such defiance might end up in jail or meet with an unfortunate “accident”.
The decision by home secretary Priti Patel to allow Wikileaks founder Julian Assange’s extradition to the US was condemned by press freedom campaigners. Reporters Without Borders described it as “another failure by the UK to protect journalism and press freedom”.
The BBC’s world affairs editor, John Simpson, said: “Journalists in Britain and elsewhere will be very worried by the decision to extradite Julian Assange to the US – both for his own well-being and for the precedent it creates for journalism worldwide.”
Unlike the United States, Britain has no constitutional guarantee of press freedom. This means the media must be vigilant about new legislation such as the Online Safety Bill or reform of the Official Secrets Act to ensure it doesn’t infringe on press freedom. But every so often, there are significant press freedom victories by journalists like Chris Mullin and Carole Cadwalladr which should be welcomed. As should the moves to tame as well as shame the libel lawyer rottweilers.
This article was first published in InPublishing magazine. If you would like to be added to the free mailing list to receive the magazine, please register here.