A very British censorship: How UK law helps oligarchs silence journalists
OPINION: So-called ‘SLAPP’ cases – like the one now facing openDemocracy – have a chilling effect on scrutiny
The UK has nothing so crude as censorship: oligarchs cannot have British journalists arrested for writing the truth about their stolen fortunes. Britain has a far subtler system.
Instead of journalists being told what to do, we are threatened with seven-figure legal fees, so we preemptively avoid any discussion of oligarchs known to be litigious. The result is the same as you would find in an authoritarian country – oligarchs are left in peace to enjoy their hard-stolen wealth, undisturbed by tiresome publicity – but the way Britain gets there is so much more… sophisticated.
This week it was revealed that openDemocracy is being sued – alongside the Bureau of Investigative Journalism, the Telegraph and the Organised Crime and Corruption Reporting Project (OCCRP) – after reporting on a fund linked to the former Kazakh dictator Nursultan Nazarbayev that controlled billions through a UK-registered company. The case has been described as ‘an egregious example of a SLAPP’.
I am no stranger to SLAPPs. Perhaps the most sophisticated example I have ever been involved in was in 2019. I was going to name the legendarily aggressive legal firm involved, but have been advised that this could be legally risky, so I’ll just call them a ‘law firm’.
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This ‘law firm’ was retained by the fugitive financier Jho Low to prevent a book about him from being published. The book – ‘Billion Dollar Whale’ – had been well-received in the United States, and sold 200,000 copies in its first year, but no British publisher would touch it thanks to the prospect of litigation. When one eventually did, I wrote about it – only for the ‘law firm’ to turn on the newspaper that had commissioned me to do so.
“Referring to the firm in the Proposed Article puts you at risk of defaming the firm and/or publishing a significantly inaccurate, misleading, distorted and manipulative article,” its letter said. My editor took fright and spiked the story, thus censoring an article about censorship.
The important point is that the article was not suppressed in a legal proceeding; no court ordered it to be blocked. It was not published simply because of the risk of having to pay legal fees. Just the prospect of dealing with Britain’s ruinously expensive lawyers was enough to make a cash-strapped media organisation back down. In the circumstances, is it any wonder that oligarchs keep threatening legal proceedings? Wouldn’t you? This is such a well-established tactic that it even has its own acronym: SLAPP, which stands for a Strategic Lawsuit Against Public Participation.
This is a very British form of censorship, built on convention and understanding, rather than hard and clear rules. We have no idea how many times this dynamic is repeated, and how many articles have been quashed because wealthy people don’t like them. We don’t know where exactly the line is that defines what we’re actually allowed to say, so we have to find it for ourselves. Similarly, we have no idea how many journalists choose never to start investigating these individuals in the first place, because they don’t want to waste time writing words that will never be published.
And we have no idea what the consequences are of this information not being published: how many legal investigations never got started because police officers lacked the information to begin a case; how many oligarchs successfully slipped into the upper reaches of the establishment because Google revealed nothing bad about them when they offered a political donation to the Tory party.
We can safely say, however, that oligarchs and their lawyers are able to exploit British defamation and data protection laws to suppress scrutiny on an industrial scale. “For me, the problem is that the UK is the greatest place on earth to be a financial criminal. You have everything at your fingertips: all the private spooks, all the law firms that know how to target journalists. That’s the problem you need to solve,” Bradley Hope, co-author of ‘Billion Dollar Whale’, told me when I still thought I could publish an article about his book.
Over the past 12 months, three consecutive cases – those brought by Russian oligarchs against Catherine Belton; by Kazakh businessmen against Tom Burgis; and by Brexit funder Aaron Banks against Carole Cadwalladr – have drawn attention to the jeopardy faced by journalists who delve into the secrets of the rich and powerful.
The journalists won – or, in Belton’s case, settled in exchange for a few unimportant alterations to her book ‘Putin’s People’. But the cases still obliged the Ministry of Justice to wake up, finally, to the fact that we might have a problem – particularly when combined with the disquiet over the influence of oligarchs in Britain that followed Russia’s assault on Ukraine in February.
The problem is that the UK is the greatest place on earth to be a financial criminal
In July, it announced plans to cap the level of costs that journalists can end up paying, and proposed to give judges the powers to toss out cases that appeared manifestly abusive. “We won’t let those bankrolling Putin exploit the UK’s legal jurisdiction to muzzle their critics. So today, I’m announcing reforms to uphold freedom of speech, end the abuse of our justice system, and defend those who bravely shine a light on corruption,” said then justice secretary Dominic Raab at the time.
This looked like good news. If oligarchs are not able to threaten journalists with bankruptcy or bring baseless cases to tie media outlets up in legal knots, they will lose the major weapons they are able to wield against scrutiny. However, these reforms would cut off well-connected lawyers from lucrative revenue streams. Those lawyers may not have been publicising their disquiet about the reforms, but you can be sure they will be working behind the scenes to weaken them.
This has been the fate of other anti-oligarch measures introduced this year by the government – including long-delayed transparency for property owned via shell companies; as well as measures to clean up the mess that is Companies House – which have proved to be far less fearsome in practice than they sounded when first proposed. Besides that, politicians have failed to give long-term extra funding to our law enforcement agencies, which are as terrified as the newspapers by the legal costs that result from taking on oligarchs.
And there is an extra problem now too. Raab backed Rishi Sunak’s bid to become prime minister, and lost his job when Liz Truss won instead. He is therefore no longer in any position to push through his proposed reforms, which is why his proposed “bill of rights”, intended to allow the government to break European human rights rules if it wanted to, has already been (mercifully) scrapped.
Will Truss prioritise tackling SLAPPs, or will these proposals crawl off to die in the folder marked ‘when parliamentary time allows’? In the omnicrisis that awaits us this winter, there is little likelihood that parliamentary time will be found without enthusiasm from Downing Street, and the best chance in a generation of finally setting our journalists free to investigate the wrongdoing of the wealthy could be lost.
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