The title is short, but its lengthy sub-title is frightening. A new book by famed British media lawyer Geoffrey Robertson shows how defamation and privacy have been weaponised. The book is Lawfare: How Russians, the rich and the government try to prevent free speech and how to stop them.
Robertson, a King’s Counsel and head of Europe’s largest civil rights legal practice, has played a leading role in some of the most celebrated British and European media legal battles of the past four decades. He is co-author of the authoritative book Media Law.
His latest book, which I have just read, is an excoriating indictment of defamation and privacy laws and torts. He writes of the English legal system but many of the laws are reflected by those in New Zealand and the torts form part of the precedents on which our own common law legal system relies.
Free speech has been described as a “quintessentially UK right”, bound to the country’s constitutional foundations (and, by extension, to New Zealand’s legal traditions). Robertson says this is “nonsense”. The Magna Carta was silent on the matter and sixty years later the first law was passed to protect the reputations of ‘great men of the realm’. He then sets out to show how existing libel and privacy ‘rights’ are not only unfit for purpose but have been exploited to the point where they create the antithesis of free speech.
Lawfare – which takes its name from the practice of using legal systems to damage and delegitimise an opponent or deter an individual’s use of their legal rights – describes how English law is being used as a weapon against reporters and news organisations on a scale that seriously threatens investigative journalism.
England’s defamation and privacy laws have become so weighted in the plaintiff’s favour that London is now the libel capital of the world. So much so it has been dubbed ‘a town called Sue’ by American journalists. It has become a destination for ‘libel tourism’, with the world coming to its doors for ‘redress’. No more so than Russia and the oligarchs that prop up the regime.
The book is written for a lay audience and, at times, reads like a spy novel.
Robertson recounts cases where Russian oligarchs have sued, not because they want damages but because they want to chill any investigations into their corrupt practices. Some of those investigations have proven fatal.
The London barrister represented Forbes magazine journalist Paul Klebnikov when he and the magazine were sued by ex-KGB businessman Boris Berezovsky. The case was settled, but the journalist was assassinated on a Moscow street by a Chechen hit squad. The oligarch later fell out with Putin, caught a bad case of ‘suicide’, and was found dead in his mansion in the English countryside.
Robertson also represented an American businessman sued for exposing Russian police corruption, taking on the case after the defendant’s Russian lawyer was arrested and beaten to death in a Moscow jail. In that case, a Russian policeman earning £15,000 a year was somehow able to afford a six-month trial in a London court that cost millions of pounds.
On another occasion, representing the Wall Street Journal in a defamation action brought by another Russian oligarch, Robertson traipsed through the Moscow snow in search of evidence to prove their published statements. Shady characters offered all manner of information (including KGB files) but, as Robertson ruefully notes, they would not have stood up to cross-examination in an English courtroom.
Britain’s libel laws – and New Zealand’s – allow truth as a defence but place the burden of proof on the defendant. Not only must something be true to avoid losing a defamation suit, but the media must also be able to prove that it is true. Robertson says this is “unprincipled and illogical”, running counter to all other civil actions where damage must first be proven by the claimant. New Zealand’s Defamation Act requires corporate claimants to establish actual or potential financial loss but, like Britain’s legislation, there is no requirement on individual plaintiffs to prove damage to their reputations.
That provision of the Defamation Act and restrictions that have prevented the gathering of proof have seen countless successful actions brought against media by politicians, celebrities and professional sportsmen as well as foreign nationals with a bolthole in Britain. It has also led to a climate of caution among in-house lawyers advising newsrooms not to chance their arm because the cost could be ruinous.
And beyond libel they can fall back on a privacy tort that has built a high brick wall around those who can afford to hide from public scrutiny. Robertson is scathing about the British judiciary, whose decisions and rulings have made it much more difficult to argue that the public interest outweighs the right to privacy. And the passage of a Data Protection Act, ostensibly designed to protect personal information, has become another bludgeon used to prevent publication, irrespective of the public interest.
Robertson is critical of costs that are taking litigation well out of the reach of ordinary citizens. He notes that the going rate for a King’s Counsel is around £1000 an hour and representing a Russian oligarch could set the litigant back £1500 an hour. Cases drag on for many months and the bill is unlikely to be less than £1 million. The amount is more than double in New Zealand dollars. Defendants face similar costs and, if they lose, must also bear a large proportion of the plaintiff’s costs as well as any damages.
Individuals should be able to stop, and obtain damages against, those who tell reckless or deliberate lies about them. That is why we need a law of libel and slander, so long as they do not prevent the exposure of wrongdoing. But in British newsrooms, libel is a major inhibition on free speech, as the pre-action letters arrive from lawyers to the wealthy, laced with pompous demands for suppression or retraction. It will often amount to high-paid bluff, but failure to call it is the consequence of unconscionably high costs and the business caution of media insurers. Or in-house lawyers who fear the evidence may fall short of compelling, because the sources fear reprisals from employers or from the government whose guilty secrets they have divulged in breach of contract or data protection law or reasonable expectation of privacy.
The book recommends a host of reforms, not least changes to the burden of proof in the defences of truth and public interest (New Zealand’s law still lacks the latter). It also calls for a presumption in favour of free speech unless a claim to privacy can be proven to be in answer to a pressing social need (such as personal safety).
New Zealand laws differ from those of England in matters of detail – such as our retention of jury trials in libel actions that have effectively been stopped in England – but the impact of English jurisprudence on civil actions in our courts is profound. Change there affects us, too.
Our own Defamation Act is three decades old and in urgent need of revision. Our privacy laws – both in statute and common law – are equally in need of renewal.
Unfortunately, libel is like an iceberg. The public only sees the part that surfaces in court. What they do not see is the effect of threats of litigation brought by those with obvious means against news media that now need every penny they can muster.
There was a time when our newsrooms, armed with the knowledge that right was on their side and backed by the money to defend their position, could take the same attitude as Private Eye did in a legal encounter delightfully retold by Geoffrey Robertson. In response to a pompous threat, the satirical magazine replied: “We note that Mr Arkell’s attitude to damages will be governed by the nature of our reply and would therefore be grateful if you could inform us what his attitude to damages would be, were he to learn that the nature of our reply is as follows: fuck off.”
Mr Arkell and his lawyer did so, but I wonder how many media organisations have the financial fortitude to take that attitude today.
Lawfare: How Russians, the rich and the government try to prevent free speech and how to stop them by Geoffrey Robertson is published by TLS Books (London) $NZ35.
By the numbers
When it comes to their own performance, media outlets are not above gilding the lily, or at least fudging the figures to avoid any unpleasant revelations.
It is not uncommon to see aggregated results from different forms of media that make it difficult to see how each medium is performing. Some have even stopped publishing results that they routinely revealed in the past.
So, without comment, here is one set of results unencumbered by additional data: Nielsen’s national metropolitan newspaper readership report published last week. It shows the number of people over the age of 15 that read a typical issue of a given newspaper in the latest survey period (fourth quarter of 2022 to the third quarter of 2023) and compares it with the previous survey and with the same survey period a year ago.
