Eliot Higgins found out two weeks before Christmas 2021.
The news came in a seven-page letter sent by lawyers acting for the head of Russia’s Wagner militia group. It informed Higgins, the founder of the Bellingcat media group, that he faced defamation proceedings in the English courts.
For the Guardian journalist Tom Burgis, then at the Financial Times, the letter warning of legal action against him by the mining company ENRC, a case which would have cost more than £1m had it not been thrown out by a judge, came just before the birth of his youngest child.
Catherine Belton, now working in the UK for the Washington Post, received several letters: four oligarchs and a Russian state oil company, were all bringing cases against her and the publisher of her book, Putin’s People, in what has been described as a “legal pile-on”.
All three journalists have two things in common: they are respected investigative reporters working in Britain, and they are victims of what campaigners describe as abusive lawsuits designed to shut down their stories.
These are not isolated cases. An international survey in 2020 by the Foreign Policy Centre thinktank found those reporting from outside the UK on financial crime and corruption face almost as many threats of court action in England as they do from all other European countries and the US combined. Some call it lawfare. Others use the term Slapp. It stands for strategic litigation against public participation.
The Solicitors Regulation Authority recognised the problem last year. It issued guidance which defines Slapps as “an alleged misuse of the legal system, and the bringing or threatening of proceedings, in order to harass or intimidate … thereby discouraging scrutiny of matters in the public interest”.
Such is the concern about the impact on free speech and the public’s right to know that the editors of the UK’s leading news organisations, from the Telegraph to ITN, have signed a letter urging ministers to include legislation in the king’s speech next week.
The UK Anti-Slapp coalition of campaigners and media groups, including the Guardian, has drawn up a model law which it wants enacted by parliament. Similar moves are under way in the European parliament, to protect journalists in the EU.
The proposed law would allow judges to dismiss abusive cases early in the process, before costs start to mount. It would also cap costs, and force claimants who bring vexatious suits to pay damages to the defendant.
The government recognises the problem, and has introduced anti-Slapp measures in the Economic Crime and Corporate Transparency Act, which was given royal assent last week. But the act only applies to cases involving economic crimes.
Campaigners say anti-Slapp laws need to cover a broader range of wrongdoing, for example, misconduct, war crimes or sexual harassment. Hence the call for measures in the king’s speech. The justice secretary, Alex Chalk, has agreed there is “more to do”, and said the government would bring further legislation “as soon as parliamentary time allows”.
Writing in the Telegraph, he said: “The insidious, chilling effect of Slapps is eating away at our democracy, obscuring the truth to pull the wool over the eyes of the British public. This government will not stand for it.”
Trauma and shame
A key figure in the push for reform is Susan Coughtrie, the co-founder of the UK Anti-Slapp coalition. Over the past four years she has worked to bring what was largely a hidden issue into the open.
“When I first started looking into this there was a lot of nervousness,” Coughtrie said. “Many journalists didn’t want to talk about it because it had been traumatic. There was a shame element there that was quite strong. Talking to in-house media lawyers there was a view that this was commonplace, there was nothing we could do about it.”
The trigger for Coughtrie was the murder of the journalist Daphne Caruana Galizia in Malta in 2017. She was battling more than 40 lawsuits at the time of her death, and had been threatened with legal action in the US and English courts.
Coughtrie describes the UK as a “haven” for defamation suits.
Why? There are several reasons.
In English law, the burden of proof is on the defendant, unlike in the US, for example. The judge decides on the meaning of an article, or a comment, which can force defendants to build a case defending something they didn’t actually say. Access to UK lawyers is prohibitively expensive. A trial can cost each party £500,000, as a minimum. Damages go upwards from there. Because the stakes are so high, the cases are all-consuming.
The UK has also been a welcoming place in recent years for the kinds of individuals likely to bring such cases. For example wealthy businessmen from the former Soviet bloc, who may have property or children at school in London, or may even have purchased UK residency through a now discontinued golden visa scheme.
The warlord who sued for libel
The case brought against Higgins by Wagner’s founder, Yevgeny Prigozhin, is one of the most extraordinary on record. Prigozhin was killed in August, shortly after leading a failed coup against Vladimir Putin.
For many years, the oligarch denied financing or controlling Wagner. In December 2021 he sued Higgins over a series of the journalist’s tweets that linked to articles by his own outlet, Bellingcat, and others by CNN and Der Spiegel, connecting Prigozhin to the mercenary group.
When the case began, Prigozhin had been subjected to UK sanctions for more than a year for providing support to Wagner’s activities in Libya. The UK sanctions regulator, the Office of Financial Sanctions Implementation, which is part of the Treasury, must approve any significant expenditure by people under sanctions. It has since emerged that, even as Prigozhin was preparing to attack Ukraine, the OFSI gave him permission to hire solicitors to bring the claim against Higgins.
It was Christmas 2021. “It was exhausting,” Higgins recalls. “You get a letter and you are told you need to reply within two weeks or we will start proceedings. I spent the period rushing around asking if anyone knew good lawyers.”
The London-based firm Discreet Law acted for Prigozhin and was given permission by the OFSI to collect fees and even travel to St Petersburg.
Coughtrie said one of the elements that marked the case as a Slapp was that it was against Higgins personally, rather than his employer, Bellingcat, which is based in the Netherlands.
Also, the suit was not about an article he had written. And Prigoznin brought no legal action against the publications whose work the tweets had linked to.
The case was abandoned only after Russia invaded Ukraine, leaving Higgins £70,000 out of pocket and unable to claim damages. He has referred Discreet Law to the Solicitors Regulation Authority – which is understood to be examining more than 40 Slapp complaints – claiming the case was designed to cause him “maximum distress” in order to “deter him from publishing further content”.
Discreet said its communications with clients were confidential. It added: “Discreet Law’s position is that in taking instructions and undertaking due diligence we have at all times complied fully with our legal and professional obligations. We do not consider it appropriate to comment further while there are ongoing SRA inquiries.”
‘Fear of losing your home’
When Burgis was sued over his book, Kleptopia: How Dirty Money is Conquering the World, the mining company ENRC brought the case against his publisher, HarperCollins, as well as Burgis personally. ENRC also sued Burgis and the Financial Times in relation to an article published in the FT magazine.
The defence cost nearly £340,000. If it had gone to trial and Burgis had lost, his lawyers estimate it would have cost £500,000 for the defence, £900,000 for ENRC’s law firm, Taylor Wessing, and £100,000 in damages. But a judge dismissed the HarperCollins case in March 2022, with the publisher describing it as “an egregious case of lawfare”.
Subsequently, the case against the FT was discontinued by ENRC.
Burgis said the impact of the case on his personal life, brought just before the birth of his youngest child, was significant.
“You think about it all the time and it consumes your waking mind, and sometimes your sleeping mind. It’s fear. Fear of losing your home, where your family live, and fear of public disgrace. The journalist in these Slapp attacks is very often portrayed as a crook disguised as a journalist.”
Lawyers for ENRC rejected any suggestion the case could be defined as a Slapp. They said it had sued Burgis personally, in part, because of claims he had made on Twitter and in interviews.
ENRC said it was surprising Burgis feared he could lose his home when he confirmed at a parliamentary inquiry that his publisher and newspaper bore the costs of his case.
There has also been an effect on jobs. Independent online media are flourishing around Europe. Many publish in English and would love to open offices, even headquarters, in the UK but they have been deterred by the legal system.
A growing number, such as Bellingcat, are based abroad. After the pandemic, another group previously based in Bosnia, the Organised Crime and Corruption Reporting Project (OCCRP), moved its European office to Amsterdam.
Location, however, does not guarantee safety from lawsuits originating in the UK. The founder of OCCRP, Paul Radu, was personally sued at the Royal Courts of Justice in London for tweeting an OCCRP article he had not written or edited, although he had coordinated the reporting. Radu was living in Romania, and the plaintiff was an Azerbaijani MP, but the latter had property and family members in Britain, which gave him grounds to sue there. He dropped the claim on the eve of the trial.
Radu said: “Before this, we wanted to open an office in London. It was very seriously considered by us, and instead we opened an office in Amsterdam.
“The risk is too great for journalists right now.”