(Bloomberg Opinion) -- London is such an appealing place to bring defamation claims that it has been jokingly referred to as “a town called Sue.” There have been some attempts at reform, but up to now, governments have just shrugged while lawyers made a killing.
In an extraordinary letter to Secretary of State Anthony Blinken last week, U.S. Congressman Steve Cohen, a Democrat from Tennessee and co-chairman of the U.S. Helsinki Commission, has demanded that six U.K. lawyers be banned from the U.S., a measure aimed at sending a message and deterring abusive lawsuits that “harass and intimidate” Vladimir Putin’s critics. The “oligarchs who hire lawyers to engage in abusive lawsuits against journalists to silence them, cannot exert malign influence in our system and the systems of democratic allies without their enablers,” Cohen wrote.
“Opening salvo in the war on Putin’s western enablers has started,” tweeted Bill Browder, the former Russian fund manager turned human-rights advocate. His new book contains riveting detail of his many battles with lawyers acting for various Kremlin interests. It’s hard not to cheer along, especially if you read the U.K. parliamentary testimony in March of Catherine Belton (author of Putin’s People) and Tom Burgis (author of Kleptopia). They recounted the barrage that they and their publisher, HarperCollins, were subjected to from London lawyers hired by oligarchs or their companies.
Lawsuits aimed at shutting out revelation or discussion are often referred to by the acronym SLAPPs – strategic lawsuits against public participation. The term has various definitions, but as Belton or Burgis would say, you know one when it hits you.
The use of SLAPPs is a Europe-wide problem, but England is particularly rich pickings for those looking to prosecute claims, partly because the large number of law firms willing to take those cases, the potential for big damage awards and the sky-high costs that can cripple defendants. The backlash against intimidation using London-based law firms isn’t just coming from Washington. Tory lawmaker Bob Seely used parliamentary privilege to name names in March, calling for a crackdown on what he termed “legalized gangsterism.”
“A free press should be intimidating kleptocrats and criminals,” Seely said. “Why have we got to a position in our society, a free society, the mother of parliaments, where we have kleptocrats, criminals, and oligarchs intimidating a free media?”
Cohen’s letter names Nigel Tait of Carter-Ruck (who represented oil firm Rosneft in its suit against Belton); John Kelly of Harbottle & Lewis (who represented the sanctioned oligarch Roman Abramovich against Belton and HarperCollins); Hugh Tomlinson (who acted for Abramovich, Mikhail Fridman and Peter Aven, all sanctioned now); Geraldine Proudler of CMS (who represented Fridman and Aven along with Russian interior ministry official Pavel Karpov in a lawsuit against Browder that was thrown out); Keith Schilling of Schillings, who Cohen cites in relation to fugitive Malaysian businessman Jho Low, who is accused of embezzling billions of dollars from the Malaysian state investment fund 1MDB; and Shlomo Rechtschaffen, who is cited for representing Walter Soriano, a former Israeli intelligence agent who has been linked to sanctioned oligarch Oleg Deripaska and others.
The firms named in Cohen’s letter – and by Seely in March – have all strongly denied all allegations of acting unethically or improperly.
The Foreign Policy Center, a U.K.-based think tank which has just published a report with detailed proposals for reform, found 73% of the 63 investigative journalists working on corruption stories across a number of countries had experienced legal threats as a result of information they had published. In its consultation document, the government cites estimates of 14 SLAPPs cases in the U.K. in 2021, two more than in 2020.
The assassination of Maltese investigative journalist Daphne Caruana Galizia, who faced 47 civil and libel suits at the time of her death, was a grim reminder that intimidation isn’t limited to the courtroom. A public inquiry found the state “must bear responsibility” for her assassination.
The question raised by Cohen’s letter is whether to blame (and punish with bans) the lawyers or try to change the system itself.
The argument for sanctioning the lawyers themselves is that the kind of attacks that Belton, Burgis and others have been put through are so egregious and the battle against Putin’s aggression so existential, that waiting for the grinding wheels of reform to make a quarter turn is wholly inadequate.
But banning lawyers, however deplorable their ways, is also an uncomfortable direction of travel in a democracy. Even unsavory people are entitled to legal representation. Britain’s cab rank rule requires barristers (those who argue in the courtroom) to take on cases within their expertise without regard to the identity of the client or the nature of the case or their own beliefs about the character or reputation of the client. That rule doesn’t apply to solicitors, who can earn lucrative sums from “reputation management” work, but the public naming-and-shaming may have largely done the job of closing many of these doors for now. But what about in the future?
Prime Minister Boris Johnson, who worked in journalism before turning to politics, has said he is live to the problem. The government has launched a consultation with the aim of strengthening legislation to protect defendants against spurious suits or introduce new court checks that allow them to be dismissed earlier in the process.
Clearly, the current set-up has been open to abuse. The law favors claimants, who are not required to prove that what was published is false; journalists and their publishers cannot use the fact that the allegations had been previously published as a defense. Litigants can rack up eye-watering costs and in multiple jurisdictions (Belton was also sued in Australia). For many journalists and their publishers, the stress and expense and the time it takes to resolve a dispute is prohibitive. That’s the whole idea.
Even where cases are thrown out, or settled with minor changes to texts or statements, the claimant can exact enormous costs and delays that impact the effect of publication as well as serve as a warning to others. Belton and her publisher faced five libel claims, which she says cost 1.5 million pounds ($1.9 million) to defend; that figure would easily have been far higher had they not agreed to make some small changes to the book to settle claims with the the now-sanctioned oligarchs Fridman and Abramovich.
Britain’s defamation law was, in fact, reformed in 2013 to reduce libel tourism and protect publications and journalists from lawsuits that were intended merely to shut down critical publication. It didn’t go far enough. Caroline Kean, founder of Wiggin LLP and the litigator who defended both Belton and Burgis in the libel actions, says case law has defanged the changes introduced by those reforms and that the defense that publication serves the “public interest” has become “a tool for the inquisition of the journalist, not a defense to a claim.”
Not all those bringing libel action are Putin-enabling oligarchs, of course. The BBC had to apologize and pay damages to former Ukrainian President Petro Poroshenko after it wrongly alleged that he paid money to Donald Trump’s former lawyer, Michael Cohen. Public figures, celebrities and others rely on those laws, too. Changing the law to increase the hurdle for abusive claims could make it harder for those who have real cause for redress to get justice. Libel laws are also a ring of defense in a country with a strong tradition of tabloid exposes.
Tweaks to the law, such as allowing judges to strike out an accuser’s claim early where there is no reasonable basis to proceed – and compelling claimants to show “serious harm” right away – could end abusive claims early without discouraging genuine cases. Strengthening the “public interest defense” might also be a sensible way forward. Reversing the burden of proof (which rests with the defendant in the U.K., unlike in the U.S.) would be a more controversial measure in Britain.
Cohen’s letter and the work of Seely and others have highlighted what most media outlets reporting on Russia have long known; that London has been a key destination for those using litigation to stifle scrutiny into dirty money and how Russia’s oligarchic networks operate. Johnson’s government is finally asking the right questions; it now needs to fix the system that has provided Putin’s enablers with a welcome mat.
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This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Therese Raphael is a columnist for Bloomberg Opinion. She was editorial page editor of the Wall Street Journal Europe.
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