Running a small news outlet, I lost count of the threatening letters from highly paid lawyers. Many were so florid that they would have been funny, if they weren’t so menacing: one court case could have bankrupted us, even if our reporting was correct.
England’s bloated, dystopian “lawfare” industry — the use of libel, privacy and data protection and other laws to bully and silence journalists — is the target of Geoffrey Robertson’s timely new book Lawfare. A veteran human rights advocate, he begins his case with a demolition of the myth that England is a longstanding bastion of free speech.
From the 1275 crime of scandalum magnatum (designed to protect the reputations of “great men of the realm”), to the 2022 Supreme Court ZXC vs Bloomberg ruling, which in effect outlawed reporting on subjects of criminal investigations, English laws have for centuries shielded the rich and powerful. In recent times, they have given cover to sex offenders as well as corrupt politicians and countless oligarchs. American journalists have long dubbed London “Town Called Sue”. (US courts do not recognise English libel judgments.)
Beyond libel, Robertson also outlines the chilling effects of privacy laws: not just on the reporting of celebrity gossip such as Naomi Campbell’s stint in rehab but, increasingly, in putting journalists’ sources at risk. When UK health secretary Matt Hancock broke his own Covid rules, the information commissioner raided the homes of those suspected of leaking the CCTV footage because of a potential data protection breach.
Worse is to come, warns Robertson, if the government succeeds in passing a “British bill of rights”. Dominic Raab, the UK justice secretary, claims this would enshrine protections for free speech. But these “protections” do not apply to proceedings involving crimes, privacy, citizenship, deportation or national security.
While it’s certainly true that victims of press intrusion deserve protection, the bill would do little to address this — or to change the fact that the current beneficiaries of the system are the libel lawyers. It’s a lucrative business where top barristers can command fees of £10,000 per day.
What is to be done? Robertson’s laundry list of solutions is bracing. Reverse the burden of proof in libel cases, so that those suing must prove the untruth as is the case in the US. Give free speech greater legal weight than privacy. Ban injunctions on public interest stories. Bring back jury trials for libel (judges, he says, are out of touch and too corporate-friendly). Ban companies from suing for libel and ban most foreigners from English libel courts to stop libel tourism. Televise defamation proceedings — if people want their reputation restored, what better way?
Media outlets are starting to speak up about the legal threats they have long battled in silence. Last year, the FT joined other newspapers in backing a model law that would give judges more power to throw out abusive libel cases earlier in proceedings.
Robertson — a press freedom maximalist — does not think such calibrated reforms (also backed by my employer) go far enough. He maintains that “the best cure for abuse of speech is more speech”. Yet in an age of widespread Covid misinformation and worse on social media, this needs much more nuance. Libel tourism must be dealt with, yes, but banning foreigners from accessing British justice sets the type of precedent that might enthuse Suella Braverman, the UK home secretary.
Nonetheless, he’s right about the scale of the problem — and the need for an aggressive response, not least in forcing claimants to prove they’ve been libelled, rather than raking journalists over the coals. “Sometimes,” he writes, “journalists feel that their published story looks like the tip of an iceberg — the information they want to publish lies below, deep frozen by their lawyers’ caution”. Other times, the iceberg never surfaces at all. For democracy’s sake, that needs to change.
Lawfare: How Russians, the Rich and the Government Try to Prevent Free Speech and How to Stop Them, by Geoffrey Robertson, TLS £10.99, 128 pages
Mary Fitzgerald is director of Expression at the Open Society Foundations
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