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    Lawfare
    Lawfare
    Lawfare
    Ebook142 pages2 hours

    Lawfare

    By Geoffrey Robertson

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    About this ebook

    How Russians, the Rich and the Government Try to Prevent Free Speech and How to Stop Them.

    ‘ESSENTIAL’ Amal Clooney
    ‘AUTHORITATIVE’ Sir Geoffrey Bindman KC
    ‘IMPORTANT ’Baroness Helena Kennedy KC
    ‘COULD HARDLY BE MORE TIMELY’ Alan Rusbridger

    The British tradition of “free speech” is a myth. From the middle ages to the present, the law of defamation has worked to cover up misbehaviour by the rich and powerful, whose legal mercenaries intimidate investigative journalists.

    Now a new terror has been added through misguided judicial development of the laws of privacy, breach of confidence and data protection, to suppress the reporting of truths of public importance to tell.

    Drawing upon the author’s unparalleled experience of defending journalists and editors in English and Commonwealth courtrooms over the past half-century, the book describes the hidden world of lawfare, in which authors struggle against unfair rules that put them always on the defensive and against a costs burden that runs to millions. Law schools do not teach freedom of speech and judges in the Supreme Court do not understand it.

    This book identifies and advocates the reforms that will be necessary before Britain can truly boast that it is a land of free speech, rather than a place where free speech can come very expensive.

    LanguageEnglish
    PublisherHarperCollins UK
    Release dateJan 19, 2023
    ISBN9780008607906
    Author

    Geoffrey Robertson

    Geoffrey Robertson KC is founder and joint head of Doughty Street Chambers, Europe’s largest human rights practice. He has had a distinguished career as a trial and appellate counsel in Britain and in international courts, defending, among others, Julian Assange, Salman Rushdie, Gay News, Lula (now President of Brazil) and reporters from The Guardian and the Wall Street Journal. He was sanctioned by the Kremlin in 2022. He has served as a UN appeal judge and as the first president of its war crimes court in Sierra Leone. He has received the New York State Bar Association’s Distinction in International Law and Affairs Award and the Order of Australia for services to human rights. He is a master of the Middle Temple and a trustee of the Bureau of Investigative Journalism. His book Crimes Against Humanity: The Struggle for Global Justice has been hailed as an inspiration for the global justice movement. His autobiography, Rather His Own Man: In Court with Tyrants, Tarts and Troublemakers, was published by Biteback (UK) and Penguin Random House Australia in 2018.

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      Book preview

      Lawfare - Geoffrey Robertson

      1.

      The Weapons of Lawfare

      The Ogre does what ogres can,

      Deeds quite impossible for Man,

      But one prize is beyond his reach,

      The Ogre cannot master Speech.

      About a subjugated plain,

      Among its desperate and slain,

      The Ogre stalks with hands on hips,

      While drivel gushes from his lips.

      ‘August 1968’, W.H. Auden’s depiction of Leonid Brezhnev’s invasion of Czechoslovakia, applies with even greater force to Vladimir Putin as he gushes lies to justify his barbaric attack on Ukraine. These lies are, for people in Russia, ‘facts’ and his lickspittle MPs have rushed through a law to make it a crime for anyone to deny them by publishing the truth. Such censorship is anathema to a nation like Britain, which boasts of its history and tradition of ‘free speech’. But wait a minute: as a top court once pointed out:

      Free speech does not mean free speech: it means speech hedged in by all the laws against defamation, blasphemy, sedition, and so forth. It means freedom governed by law.1

      And, as this book will show, governed by lawyers, who act for the very rich to wage a bloodless but nonetheless scary war, in the form of litigation, against those who attempt to criticise or expose them. ‘Lawfare’ in this sense has come to mean the use of legal strategies to harass or intimidate publishers – to make them pay, literally, in large and unrecoverable (even if they win) legal fees, and in heavy damages and their own legal fees if they lose. This is not a new problem, but it has come into recent focus as publishers of prescient books about Putin have been frightened and deterred by lawyers acting for his oligarch friends, threatened with legal costs that can run to millions of pounds. You cannot blame lawyers for using the law. But that law is antipathetic to serious journalism and must be reformed if the Fourth Estate is to function effectively in our democracy by scrutinising the wealthy and the powerful.

      ‘Lawfare’ is a weak pun, with a pejorative tinge when used by those on the receiving end of writs for libel and breach of privacy. The term originated in America in the 1950s, when first used by army chiefs who objected to legal actions brought by civil liberties groups over discrimination in the military. In Australia, ‘lawfare’ has been denounced by government ministers upset by environmentalists whose lawyers have closed down coal mines, and in Brazil the label was hung on the right-wing judicial organs that concocted corruption allegations against the country’s once and future president, Lula da Silva. Israel disparagingly accused pro-Palestinian activists of ‘lawfare’ when they tried to stop its foreign minister from coming to London, but its own supporters in the US, who fund legal actions against supporters of sanctions on Israel, call themselves ‘the Lawfare Project’. In Britain, perhaps the best example of ‘lawfare’ against freedom of speech was Mrs Thatcher’s courtroom crusade to stop newspapers from reporting any details of former MI5 officer Peter Wright’s autobiography Spycatcher, while many copies of the book were being sold in the US and around the world. The word came into current vogue in Britain in 2022 as a description of the work of ‘reputation lawyers’ who had been issuing threats and writs against authors and publishers of books about Russian oligarchs, many of whom would be sanctioned by the British government after their friend and benefactor Vladimir Putin invaded Ukraine.

      The most notable victim was a distinguished journalist, Catherine Belton, author of Putin’s People: How the KGB Took Back Russia and Then Took on the West, which attracted a sudden blizzard of legal actions, from Roman Abramovich and three other oligarchs, and from Rosneft, Russia’s national oil company, claiming that the book libelled them. It was estimated that this would cost her publishers £10 million to fight successfully, and more than twice as much if they lost – a real prospect because of the unfair rule in English libel cases that the defendant bears the burden of proof of truth and other defences. There had been preliminary skirmishes before the case settled, at a cost to HarperCollins of £1.5 million in legal fees and a cost to Belton of a year of stress and exhaustion in defending statements of great public interest that she believed were true. The court-enforced settlement was, as usual, strictly confidential, so the public cannot appreciate what infringements of free speech its terms require.

      This is the perennial problem of defending allegations about Russians, and wealthy claimants from the Middle East, or indeed from Britain, namely the impossibility of proving truth when it is hidden behind offshore trusts or in tax havens or has come from sources who fear reprisals. The law of libel, unlike any other civil law, puts the burden of proof on the defence, and however firmly and reasonably the author believes a defamatory statement, they must nevertheless prove its truth by evidence that is admissible in court. This is the main reason why, at a count some years ago, 95 per cent of libel claims were either won or settled on terms that required withdrawal of the allegations.

      The Belton case became notorious, settled as it was some months before Putin went to war. The claimants certainly were not in need of money and Putin’s People had been published a year before they took action: the flurry of writs came only after Alexei Navalny, Putin’s political foe, had displayed the book at a public meeting. The legal actions were initially heard by a judge, who (as British judges usually do) found that the book bore a number of defamatory meanings, which means merely that it tends seriously to lower a claimant in the estimation of ‘right thinking’ people. The judge sent the case forward to a multi-million-pound trial. This was a political lesson for the UK media – defame Putin and his cronies at your peril.

      They hardly needed it: over the previous few years, books had gone unwritten, or had been censored or simply not published, for fear of defamation actions about statements reasonably believed to be true but which were not capable of proof by evidence admissible in a British court. Typical was a book by Karen Dawisha, Putin’s Kleptocracy: Who Owns Russia?, which was turned down by Cambridge University Press. Its editor praised her manuscript, but wrote in rejection: ‘The risk is high that those implicated in the premise of the book – that Putin has a close circle of criminal oligarchs at his disposal and has spent his career cultivating this circle – would be motivated to sue.’2 The editor added that even if they won, the costs would be ruinous – another reason why the UK’s claim to be a land of ‘free’ speech is asinine when it comes to investigation of things that really matter. Especially when those investigations cast apersions on people of great wealth.

      Such people are embraced by British judges. As one judge recently said of an international businessman, ‘his professional achievements and family wealth make him a rare member of a small elite in the world of business. Members of this elite class are attracted to London … and it is in the public interest that the reputation of such people should not be unlawfully damaged. Their business activities are of importance to the economic wellbeing of this country.’ An importance that all too often judges permit to outweigh freedom of critical speech about their business activities.

      But it is the current state of British law that allows this. There could scarcely be more worthy news than the reporting of the Panama Papers – a trove of offshore financial records leaked from the law firm Mossack Fonseca in 2016 – and the Paradise Papers hacked from Bermudan law firm Appleby, demonstrating the tax-dodging behaviour of politicians, multinationals, oligarchs and even royalty. The Paradise Papers were published worldwide in 2017 by ninety-four news organisations, but only the British – the BBC and the Guardian – were sued, for breach of confidence. They settled with Appleby, on terms that were, as usual, kept secret – a secrecy that is unacceptable in free speech cases, where the public should have a right to know the conditions on which news organisations – public ones, in the case of the BBC – agree to surrender their right to free speech. It is now being sued by a wealthy businessman who has donated £800,000 to the Conservative Party and is likely to spend more than that on lawyers, money that will be recouped from the BBC if he wins.

      The SLAPP

      It took a threat of real war to wake members of Parliament up to lawfare. Their counter-offensive, however, was aimed at reputation lawyers, who were named, blamed and shamed for offering ‘legal intimidation services to the corrupt, to organised crime, to the Russian state or to its proxies’. They were ‘white collar collaborators’ who had ‘corrupted the British justice system’. It did not occur to these fulminating MPs that perhaps it was the British justice system that was unjust, being tilted against freedom of expression long before Putin’s friends took advantage of it.

      But this time action was promised ‘quickly and effectively’ by the minister of justice, namely an ‘anti-SLAPP’ law and a modern Bill of Rights with a presumption in favour of freedom of speech – nothing less, or so Dominic Raab claimed, than a ‘free speech revolution’. How false this claim turned out to be, when his bill was published in June 2022, will be explained in Chapter 5.

      SLAPP stands for ‘strategic lawsuits against public participation’ – a nonsense name dreamed up by American academics. In the US, thirty-four states have adopted anti-SLAPP laws, enabling judges to strike out defamation and privacy claims which abuse the legal process because their primary objective is to stop legitimate reporting. This is not a difficult task for an American judge, who can readily dismiss claims that undermine the First Amendment to the US Constitution, which protects speech unless it is not only mistaken but also made maliciously or recklessly. Anti-SLAPP action may be taken immediately after the abusive suit is filed, and (this is rare in the US) legal costs may be awarded to the media defendant.

      It can also have what Americans call ‘the Streisand effect’, after an anti-SLAPP order ended the actress’s lawsuit against an environmentalist group that photographed her edge-of-cliff mansion in Malibu – as part of a scientific study of coastal erosion. Although only four members of the

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