Caroline Kean, Nik Williams, Oliver Bullough and Sara Mansoori.

Q1 Chair: Good afternoon. Thank you, everyone, for tuning in and attending our meeting. Welcome to today’s meeting of the Joint Committee on Human Rights. We are a cross-party committee of both Members of the House of Commons and Members of the House of Lords.

In today’s session we will take evidence about strategic lawsuits against public participation, or SLAPPs as they are sometimes known. We will look at the Government’s proposals for reform in this area. We will particularly explore the implication of SLAPPs on freedom of expression as enshrined in Article 10 of the European Convention on Human Rights and on the right to privacy, which is enshrined in Article 8. We will hear from two lawyers who have specialised in dealing with SLAPPs and media and information law. We will also hear from a writer and journalist and from a group that campaigns on the issue.

I will start by introducing our witnesses. Our first witness is Caroline Kean, who is a consultant partner at Wiggin LLP, where she heads the defamation and litigation practice. Thank you, Caroline, for being here. Our second witness is Sara Mansoori KC, who is a barrister at Matrix Chambers. She has a wide range of experience in media and information law. Thank you, Sara. Do you prefer Sara or Sarah?

Sara Mansoori: Sara, please.

Chair: We are delighted to have you with us this afternoon. Our third witness is Nik Williams, who is the policy and campaigns officer at Index on Censorship. Thank you, Nik, for coming along to give evidence this afternoon. Joining us online is Oliver Bullough, who has written two books focusing on financial crime.

I want to remind witnesses and Members that we should avoid referring to any matters that are currently before the courts due to Parliament’s sub judice rule. We just need to be careful on that.

I will start with a very general question and perhaps I could direct this to Caroline. Can you tell us exactly what a strategic lawsuit against public participation is and what sort of claimants and respondents we get in these cases?

Caroline Kean: Yes. It is a lot easier to say that you know it when you see it rather than giving you a definition. Broadly, it is a lawsuit or a letter before action, any sort of claim, that is more about suppressing debate and intimidating a publisher from publishing or trying to get them to withdraw publication than about vindicating reputation and properly securing damages.

Who are the claimants and who are the respondents? The claimants tend to be wealthy individuals or companies—companies with substantial backing. Quite often we will see a company that is not a trading company but a holding company, for example, or a company that owns assets from abroad and is subject to control from outside the jurisdiction. The respondents can be anyone, from any of the media publishers down to individuals. It is a very broad range of respondents.

Chair: I was just looking at a graph produced by the Coalition Against SLAPPs in Europe, where it looks at the kinds of claimants who are involved in these cases—or “complainants” as it calls them. They seem to be overwhelmingly people in business, but it also talks about politicians and public services and state-owned entities. I was interested to see that it also includes NGOs and associations as complainants. It has had 35 cases where an NGO or an association was a complainant. Have you come across cases such as that?

Caroline Kean: I have not personally come across that. I do not know if you have, Nik?

Nik Williams: Not so much in the UK. You see different clusters of SLAPP actions depending on a certain dominant or predominant issue. For example, in Ireland there are a lot of cases related to environmental protection, a lot of organisations going against pro-transparency organisations in environmental claims. You will get some organisations that have NGOs. Sometimes they are NGOs that have been set up as part of another business entity and then they use the NGO as the vehicle. I do not know of any exact cases here. It is something I can follow up on in writing if that is something that you want to look at. I am not aware in the UK context.

Chair: Sara, is there anything that you want to add in general to the question looking at what exactly these SLAPPs involve and who the complainants and respondents are? It seems to me that very typically the complainant will be a wealthy individual or organisation and the respondent might be a journalist or somebody like Oliver, who has written a book. Am I right in thinking that?

Sara Mansoori: As to NGOs, I have not come across that, but in addition, when you introduced me you introduced me as someone who specialises in SLAPPs. I do specialise in media and entertainment law but, in fact, in my practice I do not think that I have come across a genuine SLAPP action. So I think that we need to be very careful in what we look at and how we define it, in this jurisdiction I am talking about and in my practice.

I agree with what Caroline said about it being a groundless claim, where the purpose is not to seek genuine vindication of your reputation; instead, it is a malicious act to try to prevent free speech from being properly published. It is also slightly dangerous to use words such as “actions that are used to intimidate and try to silence critics” because that is very much the purpose of a genuine libel action as well sometimes—not genuinely to threaten but the letters of claim that you are obliged to send under the pre-action protocol mean that you have to ask for the remedy that you are seeking. The remedy that you are seeking is that the defamatory statements stop being published, which can be interpreted as silence. Those letters can, understandably when I have acted for defendants as well, appear to be very intimidatory. So I think that it is important to look at the actual facts of each case, and it is difficult to say that when you see a letter you know what it is and it is a SLAPP action.

Chair: People are entitled to take steps to protect their reputation if they have been defamed.

Sara Mansoori: Exactly, and it is very much trying to find the balance between preventing illegitimate abusive actions but still allowing access to justice for those individuals with genuine claims.

Chair: If somebody has genuinely been defamed, taking action to protect their reputation is not malicious in any way, is it?

Sara Mansoori: No.

Chair: It is not an attack on free speech either, is it?

Sara Mansoori: No, exactly.

Chair: How essential is the element of malice, would you say?

Sara Mansoori: Malice comes down to what the purpose of the action is. If the purpose of any libel action, or privacy or data protection claim, is not a genuine and bona fide attempt to vindicate your legal rights but a façade the true purpose of which is to stop speech that is lawful and ought to be made, that would fall within the definition of a SLAPP.

Chair: Thank you. Nik, would you like to add anything?

Nik Williams: It is an interesting thing. The difference with legitimate court action to protect a reputation under Article 8 is the features of abuse that we see in SLAPPs that we will not see in legitimate defamation actions. You see people, for example, going after individual journalists, not the outlet, to try to isolate them from the institutional resources. You see them using a number of tactics to draw it out as long as possible, trying to make sure that that journalist has no more money to use legal resources and legal protections.

In terms of purpose, there are early dismissal powers and mechanisms already on the books. A lot of this is tied to what we perceive the purpose of the lawsuit to be. We do not have an objective test to identify abusive lawsuits looking at those features of abuse. As we sent around earlier, the UK Anti-SLAPP Coalition has developed a model law that looks at about 10 different examples—it is not an exhaustive list—of what the features of abuse may be. That would help differentiate between legitimate protections of reputation and SLAPPs. It would also help people who are legitimately trying to protect their reputation by ensuring that they are not using these tactics that could be labelled as a SLAPP.

Q2 Chair: Could I ask you a couple of questions, Oliver? Can you start by telling us a little bit about yourself and then tell us whether you can provide any examples of SLAPPs that you or other journalists or writers have faced?

Oliver Bullough: I am a journalist and author. I specialise in the former Soviet Union and I lived in Russia for many years. In recent years, I have focused far more on financial crime and the mechanisms by which kleptocrats and oligarchs launder their wealth and invest their wealth outside their home country.

I have received quite a number of letters. I could not tell you how many. I have printed some out and brought them with me to give an example of the kind of people who we are talking about. This one is from a former Ukrainian Government Minister, a very wealthy man with a substantial gas empire. He objected vociferously to a film that I was involved in. In fact, he objected so successfully that everyone involved got scared and the film was never shown—so that was a very successful action.

Chair: Was it just letters, Oliver, or did he take proceedings?

Oliver Bullough: No. The most successful ones do not involve any proceedings at all. This is why it is very difficult to tell how many of them there are. These letters tend to be very alarming and potentially very expensive to have anything to do with. There is a huge mismatch in resources between the person being written about and the person doing the reporting. We tend to have to be very careful, and if ever we slip up and we do get one of these letters we tend to as a rule have to back down very quickly. That was the case with this one.

This is in relation to a Malaysian financier, currently a fugitive, accused of possibly the largest financial crime of all time, the 1MDB fraud. I tried to write about the publication of a book about him and this letter was received by a newspaper I was writing for, so that article was never published either as a result. Finally—

Chair: Can I just stop you for a second? Because of the sub judice rule, we are bound by—

Oliver Bullough: These never came to court. They never amounted to—

Chair: What about the third one; it did not come to court either?

Oliver Bullough: The third one I will be a little bit careful about because I am being sued in Portugal, so I will talk in the broadest sense. But I do think that it is an interesting example of the phenomenon. This is a letter from a Scottish advocate complaining about the fact that the book was published. I received a similar one from a lawyer in Germany and I am also being sued in Portugal. This one and the one in Germany have not amounted to any actual legal proceedings, but the Portuguese case is ongoing. It is a characteristic aspect of the multiple jurisdictions in order to increase the expense and time constraint of having to deal with these things. So those are three examples of cases I have felt. This is a senior politician in a sub-Saharan African country.

Chair: In general terms, what is it about the letters that has led to you or people you have been working with backing down, as it were, and agreeing to do what is asked for? That may sound like rather an obvious question, but what is it that is threatened that leads to sufficient concern for you to back down?

Oliver Bullough: It is just the cost. I am completely confident about everything I have reported. I am careful myself. I work with very good lawyers. The editors I work with are very good. So I am not in any way concerned about the nature of what I have written, but the cost is, frankly, terrifying.

Quite recently, Chatham House, the think tank, redacted or edited a report it had published because it had been complained about by one of the people mentioned in it. It is a report about kleptocracy. It estimated the potential costs of fighting an action at £500,000. It could not conceivably afford that so it just removed him from the report altogether.

For comparison, the case I referred to in Portugal is stressful and time consuming, but so far my legal fees have been slightly more than €4,000. So, if you are looking at €4,000 against £500,000, you see one of the key aspects and problems with the British system. It is unbelievably expensive and I think that this is often missed by lawyers, who do not realise how utterly terrifying costs like that are for people who do not have anything to do with the legal system.

Chair: That is very helpful.

Q3 Lord Singh of Wimbledon: Perhaps Caroline could look at this question. I am Indarjit, Lord Singh of Wimbledon, a Cross-Bench Member of the House of Lords. What impact do SLAPPs have on the right to freedom of expression as enshrined in Article 10 of the European Convention on Human Rights?

Caroline Kean: They have a chilling effect. Going back to our conversation, I have practised in this area for many years and I have personal experience of clients who will not publish material because they are afraid of meeting a lawsuit, just as Oliver has been saying there—material that has been well sourced but the subject matter is known to be litigious. That by itself puts a brake on the willingness to publish.

What is important for people to remember in this subject is that this is not a lawsuit just between the parties, unlike any other lawsuit where you might have a contract dispute or a boundary dispute. What happens is that the action between the two who are engaged has a chilling effect on other people. They will hear that such and such a publisher has apologised for something, for example, and they know that if they try to publish that story themselves the fact that an apology has been published or that there has been a settlement will be prayed against them as further evidence that they could not have believed in what they published. This cause of action has a much wider effect on society and the ability of people to participate in public interest journalism than might superficially appear.

To pick up on one point that Sara made, I have a great deal of respect for Sara and, in fact, all the members of the Bar who act in this field, but they only see the tip of iceberg. I bridge the gap between the writers and the Bar, and we deal closely and personally with people who want to produce stories. We hear their stories. We help them try to publish. We also deal with the letters before action. We also defend the cases. I have no doubt at all that libel law particularly, and privacy law, in this jurisdiction are being weaponised at the expense of public debate.

Lord Singh of Wimbledon: Thank you. That is a very full answer. Would anyone like to make any brief comments?

Sara Mansoori: Can I make a brief comment to respond to the point raised? It is concerning if this is having a chilling effect on journalism, and that is obviously something that we want to guard against. In my own practice, I have not seen that. I have seen that there are mechanisms that the court can use. We may come on to look at the Civil Procedure Rules and the existing mechanisms to deal with unmeritorious claims, which include strike-out applications and summary judgment applications.

In terms of costs and access to justice, which seemed from what Oliver was saying to be the real concern for journalists, that is something as well that needs to be looked at. Claimants that I act for similarly have problems with access to justice, because actions are expensive on both sides. I have acted for individuals who are impecunious on conditional fee agreements to ensure that they can have access to the court. There are other methods, such as crowd funding, and insurers can sometimes back journalists who have published material. However, costs are an issue that needs to be looked at.

Nik Williams: Going back to the Article 10 element, some of the issues that Sara raised I think that we can tease out later on, but for us we see the costs that Oliver mentioned as well. We have seen research where, even prior to court, it will be about £5,000, £10,000, even £50,000, even before you get to court, and then it could be up to £1 million. So this is establishing a financial barrier to realising Article 10 rights, both for the journalist or the writer themselves to realise their ability to impart information but also, importantly, the Article 10 rights of the public to receive and then themselves impart that information. I would say that this poisons the entire free expression environment, both for those who receive and those who produce.

Q4 Chair: Caroline, you are confirming what Oliver has told us, which is that in your experience as a solicitor the threat of litigation—sometimes you think with a malicious undercurrent rather than being well founded—is leading to people changing what they were planning on publishing before it gets to the stage of any proceedings being raised at all?

Caroline Kean: Yes, or stories not being published at all—certain people not being touched because they are trouble.

Chair: Whereas in a defamation action, which, of course, would be the Scottish language I am used to—libel or slander in England—people will not threaten proceedings until something has been published that they find to be libellous.

Caroline Kean: That does not happen here. It is quite well known that some claimant firms send out what they call a legal notice to people. It has no real legal enforcement, but it is on headed paper. It looks very official. These letters will be distributed to people warning them that if such and such a story is published they will be sued. There was a very famous case, touching on the subject that Oliver touched on earlier, where one of the claimant law firms sent this type of letter to booksellers across England, warning them that if they stocked a particular book they would be sued.

Chair: That case is finished now, is it?

Caroline Kean: Yes.

Chair: Can you tell us what the book was and what the case was?

Caroline Kean: It was Billion Dollar Whale. Oliver, do you want to fill in on that?

Oliver Bullough: Yes, it is the same case that I was referring to earlier. Billion Dollar Whale is a very good—

Chair: There is not an appeal pending, is there?

Caroline Kean: No, I do not think so.

Chair: I am sorry to be such a fusspot, but I have to be very careful about the sub judice rule.

Caroline Kean: I totally understand, but this is quite well known. It is a matter of public record.

Chair: I will hand over to Oliver, thanks.

Oliver Bullough: Billion Dollar Whale was written by two American journalists based on their work investigating the 1MDB fraud, which is the embezzlement from a sovereign wealth fund in Malaysia. It is a very well-known fraud. Their book was published in the United States to great acclaim, praised and very well reviewed across the board, and it sold hundreds of thousands of copies. However, they could not find a publisher in the UK simply because their lawyers—and you will notice that it is a sign of the chilling effect of this that I will not say who the lawyers were—as Caroline was saying, sent out letters to individual booksellers. They sent out letters to Pearson, which categorises books, complaining that this was classed as a “true crime” book. They sent out letters to publishers.

Eventually, they did find a publisher. It took them about a year. They found a publisher who was brave enough to take the book on and it was published to great success. But it is noticeable that when I wrote an article about the fact that they had finally found a publisher, they also wrote to that newspaper warning them not to publish it, and that article about the fact that they had found a publisher was never published. It is a sort of meta censorship; they managed to censor the fact of the censorship.

Chair: When the brave publisher took the book on and published it, were there any legal proceedings?

Oliver Bullough: No, nothing. Not that I know of. I have certainly not heard of anything.

Nik Williams: I have one very quick point about when this becomes drawn to the attention of the claimant. One of the things that we have also seen is that when a journalist reaches out as part of their right to reply, when they send letters out to them for the right to reply, which is good journalistic practice—I am sure Oliver, who knows more about this than I do, will back that up—there seems to be this quasi-legal back and forth. What they are trying to do is to confirm the basis of the reporting and, because this is not a formal legal process but feels like a legal process, it becomes, again, very drawn out. Eventually, they may not publish, the timeliness of the piece may have gone or other stories may have come out as well. So that back and forth, which was entered into in good faith, can also then magnify the chilling effect of the legal letters that may then be forthcoming.

Oliver Bullough: That is exactly what happened in this case. I sent a series of questions to them—as is standard journalistic practice; you would not want to write an article without having sought their side of the story—to which they replied to the legal department. Instead of answering the questions, they replied with threats, picking up on what the questions had been to claim that it was an unwarranted and improperly motivated attack. I do not agree that it was, but that is what they were saying. And it was very successful. It prevented the article being published.

Sara Mansoori: On the issue of letters that are sent by journalists quite properly to obtain comments from people who you will make serious allegations about, if that allegation is false, it is quite right that the person who the letter has been addressed to writes back and explains that it is false and ought not to be published. So it is very difficult to speak about these cases just in the round without understanding the facts.

Chair: The facts of each case.

Sara Mansoori: Very much the facts of each case can be important. While I commented at the beginning about my involvement in SLAPPs, I was involved in a case for Arron Banks against Carole Cadwalladr, which has been used as an example of a SLAPP. In fact, when we got to trial, and that was an issue at the trial—it was a libel trial—the judge in her judgment expressly said that although the defendant had repeatedly portrayed it as a SLAPP, it was not. She said it was a legitimate action. In circumstances where she had no defence of truth, she had accepted that the statement she made and the meaning as interpreted by the judge was false, and her defence of public interest had only succeeded in part, it was not fair or apt to describe it as a SLAPP. But it was only possible to reach that point following evidence being heard by the claimant and the defendant and the documents being looked at. That case does demonstrate the difficulties we have in labelling claims as SLAPPs without fully understanding the details in relation to them.

Chair: I am advised that that case might be subject to an appeal.

Sara Mansoori: It is subject to an appeal, but the statement that I have just read is in the public judgment.

Chair: I am afraid we have to be ultra-careful and, believe you me, Sara, I have my own views as to how careful we have to be, but I have to follow the rules of Parliament. We have to be ultra-careful. I would love to follow up on this line because we have all read about this case, and I would love us to be able to take more evidence about it, but I am afraid I am precluded from doing that on this occasion. But it is something that the committee might revisit when we are able to do that because the point you raise could be quite an important point. Again, please trust me, we cannot go into it just now. Maybe I could move off that and ask Lord Dubs to ask our next question.

Q5 Lord Dubs: Might I go back to something that came up earlier? I want to be sure that I understand it. You are saying that the costs of this are very high and that they deter. Do they have to be that high and if they were lower would the whole system work better?

Caroline Kean: The costs are high because of our procedure in the UK. In order to defend a claim, everything is structured in a way that does mean that the costs end up being very high.

It has been incredibly helpful since the Defamation Act 2013 that almost invariably as a first step the judge decides whether he agrees with the meaning that the claimant has put on the words or whether there is any defamatory meaning. That has helped enormously because this is a hearing where no evidence is adduced. The judge reads the book, reads the article, looks at the film and then decides what the meaning will be. Classically, what happens in these cases is that the claimant puts what we call a “very high meaning” on it. They read into it the worst meaning that they possibly can. If you do not challenge that meaning, if you want to defend because it is true or fair comment or whatever, you have to defend their meaning, even though you never intended it to mean that. So we will ask the judge to decide what he thinks is the meaning.

In two cases that I have done within the last 12 months we did this and in both those cases the meanings were struck out. In one case, and this is very rare, the whole claim was struck out, to the benefit of my clients and my clients were awarded costs—but this is like hens’ teeth. This does not happen. But it has been an incredibly useful tool for defendants because that is relatively cheap. As Nik just said, it is still tens of thousands, if not hundreds of thousands of pounds to get to that stage, but it has been very useful in managing litigation.

Lord Dubs: Thank you. Unless anyone else wants to come in, I want to get to my other question. Sorry, Sara?

Sara Mansoori: Can I add one point? In relation to that, because it is a trial of a preliminary issue, the court has the power to order cost budgets, and those again can assist. In the ones I have been involved in—it is an agreed process by both sides—the judge has limited the cost to a certain amount. That again assists in keeping costs low, and if the case is struck out because the meaning is not one that is defamatory, the defendant ought to apply to get their costs, because, in our jurisdiction, the successful party is generally ordered the costs of the claim. That is the general rule.

Caroline Kean: But they never get 100%.

Sara Mansoori: You do not, and nor do claimants.

Caroline Kean: Yes, I know.

Sara Mansoori: It is a problem. Costs are a problem for both sides.

Chair: When I was in practice at the Scottish Bar, commonly costs awarded met two-thirds if you were lucky, and sometimes only about half. Is that the position in England and Wales as well?

Sara Mansoori: Yes.

Caroline Kean: We are talking here of figures that a normal person cannot contemplate. Even on a relatively short-run case they will be probably £30,000 out of pocket.

Q6 Lord Dubs: Sorry, I should have said first that I am a Labour Member of the House of Lords.

Can I get on to the question that I was going to ask you? Do you think that UK law currently strikes the correct balance between the right to freedom of expression and the right to privacy as protected in Article 18 of the European Convention on Human Rights?

Sara Mansoori: I think that it does. The case law and the statute has built up over a long period of time through careful parliamentary scrutiny and via the courts. We now have the Defamation Act 2013, which includes under Section 4 publication on a matter of public interest. That can be relied on by journalists to protect free speech if it is in the public interest, even if the information is not true, provided that they have a reasonable belief in it being in the public interest. At present, I think that it does strike the correct balance.

The issue that gives concern is, first, the costs and then, secondly, how to deal with these issues if there is a SLAPP in a proportionate way to try to avoid those costs. My view is that the balance is correct at present.

Caroline Kean: I would differ with that.

Nik Williams: So would I.

Caroline Kean: Obviously, you have Article 10 and Article 8. It is absolutely correct that there needs to be a balance between the two. But what has happened with jurisprudence since the right of privacy was introduced is that Article 8, which I think was originally envisaged as something that would genuinely protect your health, your private life and your family life, has been extended through case law to also be seen to protect your reputation, which is impinging into Article 10.

Where we are having trouble here is that in Article 8 cases first of all it is very much easier for a claimant to get an injunction against publication right at the outset, which you cannot typically in an Article 10 case. The old maxim of publish and be damned, “I will publish and prove the truth of this”, meant that you did not get an injunction. If the claimant can fold the cause of action into the privacy sphere, the courts understandably take the view that their job is to hold the ring pending trial. Therefore, if the material has the quality of privacy and confidence, it should not be disclosed until trial, so they will grant an injunction.

What that means in practice is that a publisher then has to face the idea of a year or more of litigation at the cost of several hundred thousand pounds to get to the point where the court might say, “Yes, your right of publication outweighs the claimant’s right to privacy”. The majority of stories, although they are in the public interest to publish, do not have that quality for a commercial publisher to jeopardise that money. The Sunday Times Insight team classically spends a huge amount of time and money investigating stories, but most publishers do not have the time and the resources to do that.

So a privacy injunction is a very effective way of quashing free speech and those are being used more and more. I do think that the balance is going too far the wrong way, and that is something that we would want Parliament to address.

Nik Williams: We are talking about SLAPPs but we would also be very cautious about the cause of action. We are talking about defamation and the balance there, and obviously defamation is a far older law than UK GDPR and UK privacy laws, which are increasingly being used in SLAPPs. SLAPPs are not causes of action, they are an approach through litigation, and I think that is something to be cautious about.

Article 19, the organisation not the right, has worked to define this tension between Article 10 and Article 8 in relation to defamation. Its second principle, if I may quote it, says that “defamation laws cannot be justified if their purpose or effect is to: prevent legitimate criticism of officials” and public figures “or the exposure of official wrongdoing or corruption”. There may be a tension, but there is a tension in legitimate defamation actions and the SLAPP is weaponising Article 8 and skewing the balance.

I also want to raise Article 6. There is a tension there with SLAPPs as well, because if you cannot afford to defend a case in court you are also not able to access the right to a fair trial. Looking at the costs mechanism and looking at an improved early throw-out mechanism is important as well.

Caroline Kean: There is one other point I would like to add on that. On the public interest defence in the Defamation Act, it is absolutely right that a journalist has a right to defend on the basis of public interest when material is not true, but the section as it is drafted at the moment requires that the journalist or publisher demonstrates a reasonable belief in the truth and the public interest in this publication. What happens in practice is that it means that, rather than the subject of the investigation being on trial, the journalist is on trial. You are looking back sometimes to 10 years of research with confidential sources and it is that journalist who is being pinpointed and cross-examined on, “Why did you use that word here 10 years ago?” It is a very bad balance. We do need to redress that balance.

Nik Williams: It is also why they draw out proceedings: because it becomes harder and harder to do that level of granularity.

Chair: Oliver, you have had your hand up for a while. I think that he wanted to add something.

Oliver Bullough: Yes. I am not a lawyer so I am not very good at the difference between the articles, I confess. However, listening to the discussion, it sounds a little bit like people discussing the state of English football by reference only to the Premiership. There is an entire multiple pyramid beneath the very top level of cases that come to court. I think that maybe only journalists realise they even happen. The process of deciding to do an investigation begins like this. I think, “Can I get this story published?” Essentially, “Will I be sued?” Then I think yes/no. If there is even a chance of it, I will not even begin.

If I begin and I think that it stands up, I will take it to an editor. They will have the same decision-making process. Will they get it into the newspaper? Yes/no. If they think that there is not really a good chance, they will not commission me. Then we have the same process of going to lawyers, where the lawyers say yes/no. They are normally quite cautious. That will not even get through. You have three levels of filter before an article even gets into the newspaper or on to the television to begin with. Every single one of those steps is biased against publication.

It was noticeable when a series of Russian oligarchs were sanctioned in the spring the number of editors who came to me and asked me to write about oligarch A, oligarch B, oligarch C. I had never even begun investigating any of them because it had never occurred to me that I would ever be able to write a single word about them. That is the chilling effect of this entire ecosystem. Is it SLAPPs, is it something else? It does not really matter. The effect is that it is censorship by people who are wealthy enough to bully journalists.

It does not only affect the UK. I have friends in other countries. I have a good friend who is a journalist in Angola, who receives these letters from British law firms threatening him and he just rips them up and throws them in the bin, but other publications certainly will not publish what he does. They do not want to waste money on defending his case because there is no commercial interest in publishing news about corruption in Angola.

The effect of what is happening is censorship. It means we cannot write the truth, true investigations, about rich and powerful people, which has a knock-on effect to which law enforcement investigations begin because that is where the police get their ideas from. They get their ideas from reading the newspapers. What we have is an entire sphere of society, the richest and most powerful people, who do not get investigated in the way that they should.

It is particularly striking, just to finish with this, that I have many friends who are American journalists who look at the situation in the UK in total bewilderment. They say, “How can you possibly claim to have a free press when the situation works in this way?” They will often say, “I did not manage to stand that story up. I can’t get it in the newspaper” but they will never say, “I could not get that in the newspaper because the lawyers squashed it” or, “because I did not think I would be able to get it past the lawyers” or, “because I did not think I would be able to get it past the editors”. That is something that is, in my experience, unique to the UK and it is a real problem.

Chair: The Americans do not have libel laws and defamation laws like we have in the United Kingdom, do they?

Caroline Kean: No.

Chair: Sara, did you want to come in there? Then I will hand over to Baroness Ludford.

Sara Mansoori: Yes. I just wanted to add a few points. First, in relation to what Caroline was saying about injunctions and them being granted for reputational rights under privacy, that is not my experience at all. In order to get an injunction it has to come under privacy. You cannot get an injunction generally for libel or for a breach of the Data Protection Act. You cannot get pre-publication ceasing of such articles but you can for privacy. In order to do that, you have to show that an individual had a reasonable expectation of privacy. If there was an article such as those that Oliver has described, where corruption or money laundering is alleged, those are not the types of allegations that will fall in the realms of one’s private life.

The way in which the law has developed there is very specific and it relates to a case that went to the Supreme Court that I was instructed on, on behalf of the claimant, ZXC. It is that suspects of crime now have a reasonable expectation of privacy. If someone is being investigated by the police, the Supreme Court said that that falls within the realms of your private life. It is a very narrow field. It does not prevent journalists from investigating that person anyway and publishing any articles about it. It is a narrow provision. I just wanted to make that point.

Chair: I think that we are seeing a very real difference of opinion emerging between you, Sara, and Caroline, Nik and Oliver. Is that fair?

Sara Mansoori: I think that is fair. I think that I am the only one who has—I think that the three other panellists have views that are pro-SLAPP. I will not say that I am anti-SLAPP but I am concerned about ensuring that claimants, even wealthy claimants, are still entitled to pursue genuine claims to vindicate their reputation. I think that one has to be very careful to ensure that the legislation does not prevent access to justice.

Chair: We will come on to that in a minute, but I will hand over to Baroness Ludford now for our next question.

Baroness Ludford: I am afraid I will do what Alf did and ask to clarify something that Sara said, which I did not understand and I am sure that it is my failing. You said on this case that went to the Supreme Court that if someone was a suspect and being investigated by the police, they had a right to privacy but that did not stop a journalist investigating them.

Sara Mansoori: Yes.

Baroness Ludford: How can a journalist defy that right to privacy?

Sara Mansoori: It is about the published information that is in an article. In that case, it contained details from a law enforcement document called a letter of request, an interstate communication that had been intercepted and revealed the fact that they were being investigated by a law enforcement body. You will see that the police often release details that do not identify suspects. They say, “A 46 year-old man has been arrested in the south London area”. The press can print that. They can also investigate, and if they find through their own investigations details that someone is suspected of committing theft or money laundering, then they can publish that information. What they cannot do is to publish the information that the police have and that the police suspect them of a criminal activity. It is an important but fine distinction that I am sure the lawyers understand and the journalists would understand.

Baroness Ludford: I am struggling, but I had better not spend too much time on this. Surely with a lot of the subjects of interest that a journalist might be looking at, such as an alleged kleptocrat, there would be communications suspecting this person or one authority or another raising red flags over them. These are precisely the people who will be on the radar of journalists.

Sara Mansoori: The problem is not preventing discussions and investigation of those cases. It is revealing in an article confidential law enforcement information in that document that the police or whatever body it is have kept confidential. It is to preserve the integrity of police investigations, which are of their nature confidential. If the law enforcement body chooses to make that public, then that is something that can be reported.

Baroness Ludford: It seems to me that sometimes some of the problem is that law enforcement authorities have information that they do not, for one reason or another, do anything about. It is only once a journalist publishes something about this person that anything ever happens.

Sara Mansoori: That can happen under the existing law. The article that was sued upon, just to quickly clarify, explained that this was a confidential law enforcement document, a letter of request, and this is what it contained. It was the use of that. The journalists were entitled to do their investigations themselves and publish that information. It was the reference to the law enforcement investigation document.

Q7 Baroness Ludford: Okay. Anyway, what I was supposed to be asking you about is that the previous UK Government said that the Strasbourg court, the European Court of Human Rights, “has shown a willingness to give priority to personal privacy”, as protected by Article 8 of the convention, over the Article 10 right to freedom of expression. Do you agree with that assessment? We were discussing UK law but what about the record of the Strasbourg court? Is that erring towards privacy over freedom of expression?

Sara Mansoori: I do not think that it is. I looked up where that statement came from and it was from a case called ML v Slovenia, I think, where an individual had been written about. A deceased individual who had two spent convictions was written about in a tabloid newspaper. What the Strasbourg court said was that the subject matter of that was in the public interest but the journalist had overstepped the mark in the way in which the article was written. It was not, therefore, containing information in the public interest. Again, what they based that on was one case in Strasbourg that when you look at it does not justify the statement.

Nik Williams: Could I say something very quickly about Strasbourg? A recent development is OOO Memo v Russia, where the court for the first time mentioned SLAPPs and highlighted them as an impact on freedom of expression. It also referenced the European Union proposed anti-SLAPP directive as well as the Coalition Against SLAPPs in Europe, which the Chair mentioned previously and of which Index is a member. It is the first mention of it in the Strasbourg court as well.

In European jurisdictions, there have been some SLAPP actions that have used privacy cases in very brazen ways, like demanding that a name be removed from an article and that being the basis for an extended, drawn-out threat of legal action, even when that name has been mentioned in court documents and things like that as well. We are seeing things like that work in other jurisdictions and we are also seeing privacy used increasingly in SLAPP actions in the UK.

Q8 David Simmonds: This question is on the topic of the statutory dismissal process. The Government have indicated that they would like to introduce a statutory early dismissal process for the purpose of striking out SLAPPs. Is that necessary, given that the courts currently have a power to strike out unmeritorious claims? Perhaps for the sake of efficiency, it would be helpful if you could address the question of whether the public interest element, which is one of the various criteria for the use of the dismissal process, requires definition. Should there be a definition of public interest and what would that definition look like?

Caroline Kean: I will start the wrong way around with the definition of public interest. One of the things that the Anti-SLAPP Coalition has been working on is the potential definition of public interest. We would suggest that this should be included, but not limited to, harm or risk of harm to public health, safety, the environment, climate or enjoyment of fundamental rights; the activities of a person or entity in the public eye or of public interest, matters under public consideration or review by a legislative Executive or judicial body or any other public official proceedings; allegations of corruption, fraud, money laundering, tax evasion or avoidance; and criminal activity or any other financial, business or political misconduct. We are not trying to stop people with legitimate claims bringing legitimate claims. What we are trying to do is to create a balance so that material that is genuinely in the public interest can be debated, and genuinely debated. There is nobody trying to stop somebody who is the subject of one of these stories putting their opinion and their facts forward so that these things can be discussed properly, openly and transparently. That is what we have come up with as a working definition of what should be covered under public interest.

Going back to the first part of your question, you are absolutely right, the courts do already have the ability to give summary judgment or to strike out or, as I said earlier, this point in a libel case for a meaning hearing. The problem that we have at the moment is that those sorts of applications are themselves very expensive because you have to put evidence in, and the test for the defendant is essentially, putting it in layman’s terms, that the judge has to assume everything against you and only if everything is assumed against you and he still finds that the case is unarguable can it be dismissed. It is a very high hurdle. In practice, you as a defendant have to make a choice: will I commit, yet again, six figures probably in costs in going down this route where, if I do not succeed because of the hurdle I have to meet, I am not only paying my costs for this myself, I also have to pay the two-thirds that the other side have run up and we are still at the starting point? I still have to go to trial. It is a very unappealing route.

What we are advocating for is something where there would be a balance. The media and communications judges are extremely experienced in this area. They can see quite readily if the subject matter of something is what we call properly in the public interest. What we want is simply that there should be a signal from Parliament that free speech is really important and that if they see something that looks as though it needs to be aired they will let it breathe and not stop it at the first hurdle. Nobody is saying that these things should never be defended. Nobody is saying that if the judge takes the view that on balance the right of the claimant to have the trial and have the issue aired should not be granted, but we are saying that there should be a procedure there where a judge can say, “No, this is so important that we need to be able to debate it. I am not having it tied up in the courts and subject, effectively, to private censorship”. Yes, we do say there is a need for this.

Chair: Do any of the other witnesses have a contrary view?

Sara Mansoori: I think that I am the only one on the panel likely to have a contrary view. In my view, there are sufficient powers already within the Civil Procedure Rules. We have the power to strike out claims at any stage and that provides that the court can strike it out if it appears to the court that the statement of case discloses no reasonable grounds for bringing the claim or defending the claim. It also allows for the statement of case to be struck out if it is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings. We have that power.

There is also a separate power for summary judgment under CPR Part 24, where if the court considers that the claimant has no real prospects of successfully bringing the claim—and it similarly applies for defendants’ claims as well—the court can strike out claims or award summary judgment. In terms of repeat offenders, if one of the concerns is that oligarchs or individuals are bringing repeated actions against individuals, under the strike-out provisions if the court considers that the claim that has been brought is totally without merit, it must record that fact when it strikes out a claim. It must at the same time consider a civil restraint order. The powers are there.

The concern that has been raised is about the costs, and Caroline mentioned the cost in going forward. It may be that just as with the trial of a preliminary issue that I mentioned before, where costs are capped, there could be some cost mechanism introduced. The trial of a preliminary issue is another way in which the courts successfully deal with these claims. Often, following that, as Caroline mentioned earlier, the claim is settled because the court determines that it means something that neither party thought it meant or, if it is a meaning that the defendant did not intend to mean, often they say, “If it meant that, I am sorry, I never intended it to mean that” and then the matter is resolved.

Nik Williams: I am sorry to strengthen the dynamic but I also disagree with Sara on this. We would not support an early dismissal mechanism that uses the same threshold as summary judgment because it uses, as I said, the real or realistic prospect of success. The UK Anti-SLAPP Coalition and the model law that we have drafted is looking at the claimant showing some likelihood of prevailing at trial, which we think is far more robust and is necessary to ensure that it is harder for abusive claims to proceed to trial and exhaust the resources of the defendant. This is also tied up in what we were talking about—the elements of abuse. That is what we are looking at. Unfortunately, the demonstration of the inadequacy of the current system is the cases that we are seeing coming into court, even after a long period of time. There is not a significant evidence base, in our opinion, that shows that the current system is working in this regard.

Chair: Caroline, can I ask you to explain very quickly why you do not think what Sara has described in the present system is sufficient to deal with mischief?

Caroline Kean: It is as I said, because the costs and the presumption mean that it is very unappealing. She is absolutely right. I started by saying that yes, we have these parts of the CPR that you can rely on, but in practice, when it is put into practice, to apply for the summary judgment you have to put in witness statements and these are expensive. You have to go into something hoping that the judge will agree, taking every factual point against you, that it is still unarguable, and you are still talking about at the very least tens of thousands, sometimes more than £100,000 in costs, to get to a point where you are gambling that the judge will agree with you at that point. Then you might get it struck out. If you do not, you have your costs of the summary judgment—it is like a trial within a trial, effectively. It just is not a particularly attractive route.

Chair: I understand.

Q9 Baroness Ludford: Do you think that the Government’s proposals in their consultation response would strike the right balance between the right to freedom of expression and the right to privacy? We discussed earlier the Strasbourg court’s line. Are the Government’s proposals compatible with what the Strasbourg court has been saying on balancing the two rights?

Caroline Kean: I do not think that you will be surprised to hear that I do not think it goes far enough, but it is definitely a step in the right direction. I am not sure that I am sufficiently au fait with European law. Maybe Sara can help with this and comment on Strasbourg.

Sara Mansoori: I will address first the point in relation to the Government’s proposal. It is set out, I think, at the end of the consultation paper, the reform paper. It sets out that there is a three-part process: the definition of public interest; a set of criteria for courts to determine whether a case should be classified as a SLAPP based on one or more common characteristics; and then a merits test. The legislative reform section then only contains the proposed criteria to identify a SLAPP. In my view, it is an unworkable definition that has been proposed.

It purports to set out three parts but there are actually four because one of them is repeated. It refers to sending a very large number of highly aggressive letters on a trivial matter and that is very woolly. It is not possible to define what a “very large” number of letters is compared with a “large” number of letters or “highly aggressive” letters rather than just “aggressive” letters. It is very difficult to see how that will work in practice.

Secondly, it has to satisfy that a case relates to a public interest issue, and there is only one example of that proposed: investigating financial misconduct by a company or individual. That would fall within a matter of public interest, but it would need to be better defined if there is to be a definition. I tried to note down the definition that Caroline gave, but there is ample case law about public interest in relation to a Section 4 defence in the Defamation Act 2013, which allows a defendant to publish information that can be false provided that they reasonably believed that publishing it was in the public interest. There is no reference to truth in that.

The final point is that there is insufficient evidence of merit to warrant further judicial consideration, and what the Government have said is, for example, where the case has no realistic prospects of success. As I explained previously, that is the test that is already in existence in the Civil Procedure Rules in Part 24 for striking out claims.

Nik Williams: I think that Sara is right in what these criteria are and that the Government draft does not go far enough to elucidate some of these. I do not mean to keep plugging our model law, but we have tried to outline 10 criteria of these features of abuse. The list is not exhaustive but it highlights some of them. I will give a few very quick examples: the scope of the claim; the excessive or unreasonable nature of the claim; the claimant’s litigation conduct, including but not limited to the choice of jurisdiction and the use of dilatory strategies; failure to provide answers in good faith; and the history of litigation between the parties. There are ways that we can look at these features of abuse.

Whether the order of these three or four tests is right, the features of abuse are important. Again, it means that legitimate ways of defending and protecting someone’s reputation will not fall foul of this anti-SLAPP law. An anti-SLAPP law will be deployed only when there is a SLAPP and not when someone is using a cause of action that can sometimes be used as a SLAPP.

Q10 Chair: What about the Government’s proposals for cost protection? We have talked a lot about inequality of arms because of the costs involved. The Government have some proposals for capping costs. What do you think about them? I will start with Sara, and then Caroline and Nik, and Oliver is very welcome to come in as well if he wants.

Sara Mansoori: Capping costs would be one potential option. Again, the power already exists within the rules and it is necessary to look at the powers in the Civil Procedure Rules. There are cost budgets that are put forward in cases and in those cases a case management and costs hearing is held, where the court looks at the costs for each stage of the litigation and puts down a figure for each stage. Those cost budgets are then filed by the parties. Those are the costs that a party knows will not be exceeded unless you succeed on an indemnity basis. For example, if a defendant was to put forward a cost budget but then ended up having to spend more defending the claim because of a claimant’s tactics and they were found to have succeeded in their defence such that the action was a SLAPP, then they could get indemnity costs. That cost budget then is not the relevant factor that is looked at and the costs can go above that. There are mechanisms that exist, including to cap the costs, in the Civil Procedure Rules.

There is also the possibility within the rules of qualified one-way cost shifting. There are different things that can be looked at. Those have not specifically been used in libel claims but there are existing mechanisms that ought to be explored.

Going back to the point that Nik made about abuse of process, one of the factors that is permissible for a court to use on a strike-out application is if a case is an abuse of process. That is something, again, where the case law could be developed to incorporate these points.

Chair: Caroline, do you think that the Government’s proposals add something by way of cost cap that does not exist in the present system?

Caroline Kean: I do not think they add very much to what is in the system, but that also does not really deal with the evil here, which is that it is not when you get into litigation and cost capping that is the problem, it is as Oliver is saying, that the mere thought of getting involved in this process at all has a chilling effect.

Chair: People are not saying, “Yes, I can afford to get involved if it will only cost me £30,000”.

Caroline Kean: Exactly.

Chair: People are saying, “I earn X per month and I do not have any spare money. I do not have any savings and I cannot afford to do this”.

Caroline Kean: Yes. Some of the organisations we work for are significant companies. They might have funding that an individual journalist does not have, but they still have to have regard to the bottom line. Even people who are insured have excesses on their insurance and these are not small. This goes right the way down.

Nik Williams: If we look at where the costs come from in the cases, one of the things that the model law that we have proposed looks at is establishing a process by which a defendant can make an application to the judge for an action to be dismissed if it is found to constitute a SLAPP. We believe that is incredibly important, but the only way this is important is that during the process of the judge looking at it and before the judge has made a decision on whether the application should be disposed of no further steps can proceed. This will prevent claimants from being able to exploit resource-intensive processes such as disclosure, and this will help keep costs low for both parties. That is for both claimants and defendants, which we think is an important thing.

The disclosure process is the most resource-intensive process of pre-trial and it is also where we have seen, I would say, nefarious tactics aimed at journalists, such as needing things in certain formats. There is a very elaborate way of that being brought out. We are looking to recommend that when proceedings are brought in relation to matters of public interest courts can and must ensure that the defendant’s disclosure obligations are reasonable and proportionate. This is all very important.

One thing that I do think is missed—it is not necessarily costs—is the ability to bring forward exemplary damages. That could be available for cases where the claimant has exhibited particularly egregious conduct and when the time and psychological harm caused to the defendant needs to be addressed. Working with journalists who have been SLAPPed, and not just the cases that have come to court, the emotional and psychological impact of defending that, oftentimes on their own, if they have been SLAPPed, not their employer—

Chair: You mean exemplary costs rather than exemplary damages?

Nik Williams: No, exemplary damages.

Chair: Sara, you are shaking your head.

Sara Mansoori: I saw this, I think in the Government’s response, the reference to punitive damages, but damages are what a claimant claims for rather than a defendant. Damages would not be awarded to a defendant, so it would have to be a cost mechanism, which is why I mentioned the indemnity costs, or some other cost sanctions could be given. A defendant could not claim exemplary damages. It is just a legal issue and I think that it was the same issue that was raised in the paper itself.

Oliver Bullough: Apologies, I will have to leave in a minute to go and pick up my children from school. I do think that costs is an absolutely crucial point. Investigating kleptocracy or corruption is not big business. This is not a fashionable area of journalism. It is not where the money is. It is not where the clicks are. Those of us who do it tend to do it because we are bloody-minded people and if we were interested in earning more money we would probably be doing something else entirely. It does not take very much to dissuade editors from commissioning articles in this area.

Just to remind you, in the case I am facing in Portugal, so far my costs are approximately €5,000. If in every single one of these cases that I faced my costs were €5,000, I would fight every single one and I am confident I would win them all. I have absolutely no doubt about that. I am right and they are wrong. The reason I would back down or the articles would not be published is simply because no one wants to pay £500,000 up front to do something where there is an inherent risk in an area that will not win you any commercial advantage anyway.

The situation is not fine. The situation is seriously problematic. Britain is the world’s largest centre for financial crime. Hundreds of billions of pounds are moved through the City of London every single year. That is the National Crime Agency’s own estimate. Something is wrong if journalists cannot write about that, and that is the problem that we all need to try to solve. I can understand that from lawyers’ perspectives the chances of costs being reduced to only €5,000 per case is a, frankly, very threatening one, but from a freedom of speech perspective it would be extremely liberating.

Chair: We hear you. Thank you. That is very stark and very clear. I will hand over to Lord Dubs for our final question.

Q11 Lord Dubs: The Council of Bars and Law Societies of Europe has suggested that “reforming legal aid would perhaps be the most effective way to defuse the power of SLAPPs and legal threats”. Do you agree with that proposition?

Nik Williams: I would say yes. For every journalist we speak to, it is the costs that are preventing them going forward, and not being able to depend on a sustainable and structured avenue for there being some form of legal aid. We are talking at a time when ad revenue and media costs are going down, so fewer newspapers and outlets have in-house media representation or can access high-quality external resources. I think that we need to look at something like legal aid. Sara mentioned earlier crowd funding and increasingly more and more journalists are going to crowd funding, but it is nowhere near sustainable. It is nowhere near enough. If you are a small organisation that is being sued, you do not have the prominence to get the amount of money you need.

Reforming legal aid would be important. It also gives the defendant knowledge that there is something there that they can use if they need to mount a defence, but that is not sufficient. That needs to be twinned with an anti-SLAPP law. As an international example, USAID has announced a defamation defence fund. It is about $9 million, I believe, to help investigative journalists who are being SLAPPed. That would not be as sustainable as accessible legal aid, but again it is a resource there to ensure that journalists can seek out funds to ensure they can mount a full and robust defence.

Caroline Kean: I agree, but in the current economic climate the chances of having sufficient funding is small. Do not put this on the back burner in the hope that one day we will have legal aid for people. We need to do something now.

Chair: What the Government said in their proposals is that they are not proposing to increase legal aid.

Caroline Kean: Yes.

Sara Mansoori: There is one issue on which we can come to a united front. I would also support legal aid, but I appreciate that difficulties exist. The other thought I had was in relation to CFAs. I have acted for a lot of claimants on CFAs who have not had the means to fight cases.

Chair: CFA?

Sara Mansoori: I apologise, a conditional fee agreement. This is a case where you enter into an agreement and you get paid only if you succeed in the claim at the end. Often you get what the other side pays over, so you do not claim anything back from the client as well. Those can allow access to justice. Prior to April 2019, there was also a possibility of obtaining an uplift and that could be staged. If you got to trial, you were obviously facing the possibility of not being paid anything for a huge amount of work, so if both sides went to trial you could get an uplift of up to 100%. Those have not gone, but against wealthy individuals and claimants that may be a way of assisting defendants to fund these.

Caroline Kean: CFAs work well for claimants, that is absolutely true. The problem for defendants is how you define a win.

Chair: I am very conscious that Oliver has to leave us at this point and I want to thank him most sincerely for his evidence.

Clearly, we have not covered all the ground that we wanted to cover this afternoon, but we have opened up a number of interesting lines that we will have to follow up on. There are a few questions, particularly about what other countries are doing in this area, that we would have liked to ask you. Can we follow up with you in writing and would you be able to reply to us in writing? I should stress that not every witness should feel that they have to reply to every question, but we will send out a few extra questions. It just remains for me to thank you all most sincerely for your participation today.

Oral evidence: SLAPPs: Human Rights Implications