Just over a year ago, Russia made their first incursion into Ukraine. This article intends to evaluate how UK libel law has been exploited to restrict journalism surrounding the Russian invasion. In addition, it will highlight the inherent problems with libel law and propose potential solutions about how to prevent the exploitation of UK libel law and make it more accessible.
Since May 2022, Yevgeny Prigozhin (founder and boss of the Wagner mercenary group) has pursued a libel case against British investigative journalist Eliot Higgins for tweeting articles linking Prigozhin to the Wagner mercenary group. This happened despite sanctions being imposed on Prigozhin in the UK and Europe back in 2020 to prevent organisations and institutions doing business with him.
A report by openDemocracy highlights how, in 2021, the UK Treasury “issued special licences allowing Prigozhin to override sanctions and launch an aggressive legal campaign against a journalist in the London courts.”
The leaking of this information has acted as the catalyst for legal professionals to call for reform to UK Libel Law. For example, Geoffrey Robertson KC has argued how ironic, ridiculous and outrageous it is for oligarchs, like Prigozhin, who are sanctioned for human rights abuses to be allowed to bypass sanctions and pay for lawyers “to repair a reputation that they don’t have.”
On the contrary, one may argue that the foundations of a functioning democracy allows people to have the right to a fair trial regardless. However, the means by which Prigozhin acquired British lawyers to pursue his libel case are questionable.
The Office of Financial Sanctions Implementation (OFSI) is a small department within the UK Treasury which has the ability to override sanctions. Higgins (the defendant in the libel case) has criticised the role of OFSI as counter-intuitive, citing how they became “embroiled in a scheme to undermine the very sanctions they were responsible for governing.”
To further illustrate the undermining of sanctions, the UK Treasury knew the specific details of the Prigozhin case, even though it cost £3623.04 for the lawyers to fly out to St Petersburg and meet with Prigozhin. Henceforth, this raises questions about the strength and legitimacy of sanctions as it is seemingly so easy to bypass them via the OSFI.
The moral obscurity about whether someone like Prigozhin should have the right to defend themselves in a country they have no residency is just one part of the problem surrounding libel law in the UK. Research done at the London School of Economics and Political Science has illustrated the financial burden on a libel case on the defendant too. For instance, Dr Andrew Scott has outlined how “preliminary legal arguments can cost tens of thousands of pounds” with full trials potentially costing upwards of hundreds of thousands or millions of pounds. For Higgins, the Prigozhin case, which only happened due to the undermining of sanctions, cost him £70,000. As a result, this case shows the deterrence of free and legitimate speech out of fear of legal repercussions. This is a hugely problematic consequence which has led to libel law becoming known as the archetypal ‘rich man’s law.’
In terms of Prigozhin’s motives, it has been argued that it is an example of Strategic Lawsuits Against Public Participation action (SLAPP action), which is designed to intimidate and close down legitimate scrutiny in the legal process. The article by openDemocracy pleads that anti-SLAPP legislation is essential to prevent sanctioned individuals from having the licence to abuse UK courts and bully journalists into suppressing information in the public interest. Consequently, two months after Prigozhin dropped the case against Higgins, the Solicitors Regulation Authority (SRA) published a document containing the UK Government’s proposed anti-SLAPP action and would lead to early dismissal of any SLAPP claim that:
Relates to a public interest issue.
Has some features of an abuse of process.
Has insufficient evidence of merit to warrant further judicial consideration.
Other solutions proposed by Dr. Scott suggest we should introduce discursive remedies to libel law cases (such as corrections, retractions and rights of reply) instead of damages, which deters ordinary people from fighting libel cases due to the financial risk associated with it. Dr. Scott argues this would reduce the cost burden on ordinary individuals who, under the present system, would be more likely to decide to settle any accusations of libel, irrespective of the claim’s merits.
Additionally, Sir Geoffrey Robert KC has proposed two policies that could reform libel law and increase the fairness of its processes. Firstly, he argued that it is necessary to reverse the burden of proof such that it falls on the complainant⸺not the defendant⸺to prove their case. In its current form, libel is the only civil action in UK law where a claimant seeking financial compensation places the burden of proof to the defendant.
The second reform discussed by Robertson is the need to bring back jury trials for libel cases. Juries were abolished from defamation cases back in 2013. It is antithetical that a claimant—who wants their reputation to be publicly vindicated—should not have their case be judged by a jury consisting of members of the public, especially since the claimant wants the public to restore their reputation.
To conclude, the Prigozhin case has proven that UK libel law is in desperate need for reform. Libel cases can be improved in the four ways outlined above. The introduction of anti-SLAPP legislation will prevent powerful and wealthy individuals from exploiting the UK judicial system in the same way as Prigozhin. Shifting the burden of proof onto the claimant, rather than the defendant, will introduce a fairer system of judgement. Furthermore, introducing ‘discursive remedies’ instead of damages make libel cases less of a financial burden on those who may not be able to pay the extortionate costs associated with it and the re-introduction of jury trial for libel law cases will enable the claimant to be judged by members of the public they so desperately want to restore their reputation with.
Image via Unsplash.