When two Wall Street Journal reporters published a book about Jho Low, a Malaysian wanted for his alleged role in a $4bn fraud, they hit a very English roadblock. Low hired Schillings, known as one of London’s most aggressive “reputation management” law firms.
Schillings threatened libel cases against retailers for advertising the book, Billion Dollar Whale, claiming a synopsis they were publishing was defamatory. Free speech campaigners at the time were alarmed, warning that the threats risked setting a precedent that would intimidate booksellers.
Schillings says its letters were reasonable and restrained, and that it acted in good faith. Lawyers are obliged to act in their clients’ best interests, and there were certainly no rules against such a strategy. But for many journalists, that is precisely the problem.
For one of the reporters, Bradley Hope, an American who now runs a journalism startup from London, the episode revealed the constraints of English media law.
When reporters in America lamented stories they could not publish, he said, “they’re referring to the stories they couldn’t nail”. Their British counterparts were more likely to be referring to stories “they just weren’t allowed to publish, because of the cost and the legal risk”.
Media laws in England and Wales on defamation, privacy, confidentiality, copyright and data protection are notorious among the world’s investigative journalists. So too is the industry of lawyers who use the English legal system to protect the reputations of their rich and powerful clients.
The firms insist they are providing something everyone has a right to – legal representation – and that the legal actions they file are permissible and valid. But reporters and press freedom groups believe the legal system is lopsided, and can be used to suppress public interest journalism.
Now Boris Johnson’s government is pledging to level the playing field, in a move partly driven by Vladimir Putin’s invasion of Ukraine. In the aftermath of the invasion, MPs expressed deep unease over Russian oligarchs, many of them now subject to sanctions, using London lawyers to intimidate, threaten and sue investigative journalists.
Under parliamentary privilege, MPs have criticised “amoral” lawyers involved in such litigation. Carter-Ruck, CMS, and Harbottle & Lewis are well known for their work suing the investigative journalist Catherine Belton on behalf of various Russian claimants (the firms say such criticism is misconceived, and have argued that their clients were entitled to legal representation to address perceived wrongs).
In March, the justice secretary, Dominic Raab, with the support of the prime minister, promised legislation to reform the system. A call for evidence on what has come to be known as strategic litigation against public participation, or Slapps, closed last month.
The term currently has no legal definition, but is generally understood to encompass use of the law to stifle public interest debate and discussion, including investigative reporting. A note issued by the Solicitors Regulation Authority in March describes a Slapp as a case “in which the underlying intention is to stifle the reporting or the investigation of serious concerns of corruption or money laundering by using improper and abusive litigation tactics”.
Susan Coughtrie, co-chair of the UK Anti-Slapp Coalition, said momentum for reform had been building since the 2017 murder of the Maltese investigative journalist Daphne Caruana Galizia.
At the time of her assassination, Caruana Galizia, who wrote a popular and highly acerbic blog about Maltese politics, had 47 continuing libel cases against her and had received several threats from UK law firms, despite her having no journalistic interest in Britain.
Her son Paul Caruana Galizia, 33, an investigative journalist himself, said that even where reputation lawyers failed to suppress a story, the threat of abusive legal actions “weakens the language you use, because you know everything is going to be put under a microscope”.
As a result, journalists become ever more legalistic in their writing in an attempt to head off spurious complaints, and British investigative reporting can be unusually caveat-laden and qualified, with documents “appearing to suggest” instead of “showing” wrongdoing.
“The UK media law is the worst law on earth,” said Drew Sullivan, co-founder of the Organised Crime and Corruption Reporting Project (OCCRP), which focuses on financial crime and corruption in kleptocracies.
He describes a near-constant stream of threats from British reputation lawyers to his organisation. “Because so many of these figures use the UK for various money laundering, or asset hiding, or other criminal activity, they have standing in the UK,” he said. “We’re consequently forced to deal with UK law, even though our stories seldom have anything to do with the UK. It’s become the greatest risk to investigative reporters around the world.”
‘I call it suppressing free speech’
Britain’s reputation lawyers are notorious for their enormous legal fees. A 2009 academic study found that UK libel costs were around 140 times the European average. One firm advises that cases worth less than £10,000 are not worth its time.
Though the reputation industry is reluctant to advertise a benchmark, government guidelines on recoverable costs suggest partners at legal firms in London can charge £512 an hour. However, fees in excess of this are perfectly permissible. When Philip Green hired Schillings to injunct the Telegraph from reporting complaints of workplace abuse, the firm charged as much as £690 an hour for some lawyers’ time.
Many of the top firms combine legal work with public relations and even private investigations. Tom Burgis of the Financial Times told a parliamentary committee how one of his sources was sent a letter by the reputation lawyers Quinn Emanuel, describing in detail a secret meeting with Burgis in an underground car park. “What is the purpose of that, if not intimidation?” Burgis asked. (Quinn Emanuel declined to comment.)
By way of example, Schillings, in addition to lawyers, employs media specialists, experts from military intelligence, investigative journalists, international investigators, cybersecurity specialists, digital forensic experts and former senior people from the military, police and government.
Its rival Carter-Ruck states on its website: “Whether the threat comes from a whistleblower, an unexpected call from an investigative journalist or adverse comment spreading across the internet, we can help. Controlling the story before publication can avoid the need for a legal complaint after publication.”
The firm’s managing partner, Nigel Tait, put it somewhat differently in a 2019 interview in which he said: “I get a real buzz from stopping intrusive or defamatory articles being published about clients (I call it suppressing free speech).”
Tait has since said the comment was an ironic joke, but his firm has been criticised in parliament for its work suing Belton on behalf of the Russian oil firm Rosneft (the firm discontinued its claim after a court ruled that only one of the four passages of her writing that it sued over were defamatory).
Carter-Ruck has denounced the invasion of Ukraine and says it will not work for clients linked to Putin, while Tait pointed out that for many years the firm acted for the Putin critic Boris Berezovsky.
Prior to reform of defamation law in 2013, London’s reputation lawyers relied heavily on libel to file or threaten cases against the media. However, since “responsible journalism” was given statutory protection and claimants were required to prove “serious harm”, lawyers have increasingly turned to laws on privacy, confidentiality and data protection.
Jenny Afia, a partner at Schillings, described in a BBC interview two years ago her high-level advice to clients facing an unwelcome story: “If it’s true, it engages your right to privacy, so we could try to stop it on that basis. If it’s false, then we’re in defamation territory. So, which route do you think we should be going down?”
Reputation lawyers regularly write to journalists, their editors and their lawyers threatening retaliation against proposed articles, or even complaining about questions being asked. They will sometimes question the ethics, motives or conduct of reporters, undermining them among their colleagues.
“The psychological pressure that these firms bring to bear is really clever,” Burgis told the committee. “The letters go to your editors, publishers and lawyers, and you are cast as the most monstrous, scheming and corrupt version of yourself.”
Letters from such lawyers received by the Guardian in recent years have variously accused reporters of “harassment”, “malice”, “sloppy” and “irresponsible” journalism, and occasionally made malicious allegations of criminality by reporters in an attempt to frighten editors into pulling a story.
Threats of total financial ruin are common. Representing a head of state accused of sexual assault, one firm warned the Guardian that if it published its article, its “client is prepared to sue for more than $100m”. No such lawsuit followed publication.
“Your conduct is quite deliberate with every aspect of your inquiries being examined through a skewed lens,” another told a Guardian journalist reporting on the conduct of a member of the House of Lords. “Any further queries of our client which relate to matters which do not involve our client will be treated as further harassment and will be actionable.”
‘An unreasonable legal system’
A particularly unpleasant practice is law firms targeting individual journalists in legal filings, as well as – or instead of – their media organisations. Journalists have described how frightening this can be, leaving them in fear of personal ruin and losing their homes. Belton and Burgis, as well as the journalists Carole Cadwalladr, Scott Stedman and Eliot Higgins, are among those recently sued as individuals.
The 2013 defamation reform attempted to tackle libel tourism, whereby those with little or no connection to the UK could sue foreign reporters in London, taking advantage of the claimant-friendly legal environment and intimidate them with the prospect of facing the country’s exorbitant legal costs.
However, free expression campaigners say that reform is not working, and foreign journalists are instead forced to defend vastly expensive cases about whether London is the correct jurisdiction for the claim.
Earlier this month a judge threw out most of a legal complaint from a Swedish businessman, resident in Monaco, suing Swedish journalists, who were writing for a Swedish publication, in Swedish, about a company he was planning to float in Norway – but he will still be allowed to sue them in London for damages he claims to have suffered in England and Wales as a result of the articles. (The company also sued; its claim was dismissed in its entirety.)
In another case in 2020, the OCCRP was sued by Javanshir Feyziyev, an Azerbaijani MP, after the group reported that assets linked to him and his family had been detected inside the inner workings of an international money laundering operation. Feyziyev, who denied the allegations, sued in England and Wales, partly on the basis that he spent a “substantial proportion” of the year in London, where his wife and children live.
The OCCRP, faced with the prospect of years of grinding litigation, settled with Feyziyev and published a short statement containing a denial from the MP on its website in an attempt to get out of the quagmire.
“It cost us many many months, and hundreds of thousands of pounds,” said Sullivan. “It’s just an unreasonable legal system. It’s a combination of bad laws, bad practices, bad law firms involved in the process, manipulating the system.”
A partner at the firm representing Feyziyev said the OCCRP did not formally challenge the claim on the basis of jurisdiction, and that Feyziyev had invested “significant sums” in the UK. “The litigation was pursued professionally, fairly and at reasonable and proportionate cost in the context of our adversarial system,” the partner said.
Against the backdrop of Putin’s invasion of Ukraine, there is now a sudden and unexpected opportunity for reform – which is backed from the top.
“The ability of a free press to hold the powerful to account is fundamental to our democracy and as a former journalist I am determined we must never allow criticism to be silenced,” Boris Johnson said in March. “For the oligarchs and super-rich who can afford these sky-high costs the threat of legal action has become a new kind of lawfare. We must put a stop to its chilling effect.”
The government’s consultation is examining several possible solutions to London’s reputation for Slapps. One is to require claimants to demonstrate malice in order to bring a libel claim in cases of public interest, so that the burden of proof would be on the claimant to demonstrate that the journalist deliberately or negligently published a seriously harmful statement.
Others include a mechanism to rapidly and cheaply strike out cases where a claim relates to a matter of public interest and is obviously abusive or has little connection to the UK, or placing a cap on the recoverable fees that reputation lawyers can charge in cases relating to matters of serious public interest.
The Law Society, which represents solicitors, including both those acting for and against media organisations, has suggested reform of existing court procedures to make it easier to dispose of abusive cases. “We have accepted that there is a problem,” said Jonathan Goldsmith, the chair of the society’s policy and regulatory affairs committee.
He said solicitors believed Slapps should be curtailed by enhancing existing mechanisms, such as strike-outs or early hearings. “The elements already exist in civil procedure – they just need to be strengthened in certain areas where there is felt to be something going wrong,” he said.
However, Coughtrie argues that a comprehensive law incorporating multiple proposals would be a better solution, citing successful statutes in other countries that kick out inappropriate cases early.
She added that tackling the UK’s culture of threats was equally important, pointing out that the Solicitors Regulation Authority refuses to investigate lawyers’ behaviour unless their victim has already complained to the law firm threatening them. “There needs to be a way journalists can complain if the threats are unjustified, intimidatory or inappropriate,” she said.