Ukraine war ‘opening eyes’ to need to reform England’s libel laws, says lawyer

<span>Photograph: Dan Himbrechts/AAP</span>
Photograph: Dan Himbrechts/AAP

Russia’s invasion of Ukraine has helped “open eyes” to the idea of reforming England’s increasingly draconian libel and privacy laws, according to one of the country’s leading media advocates.

Geoffrey Robertson KC, author of a new book on efforts by the rich and powerful to suppress free speech, Lawfare, said the war revealed the cynical way wealthy Russians – and others – have exploited the English legal system.

The unprovoked invasion ordered by the Kremlin last February has, the barrister said, “brought up the way in which oligarchs, as rich people, have been able to intimidate British journalists and British publishers” in costly libel actions. “Eyes are opening,” he said in an interview with the Guardian.

Robertson highlighted the case of Yevgeny Prigozhin, who acknowledged he was the founder and boss of the Wagner mercenary group in September, but who, until May, was suing the investigative journalist Eliot Higgins in London for tweeting articles linking the Russian oligarch to the same paramilitary organisation.

Last week it emerged that British lawyers acting for Prigozhin, who had been put under sanctions by the UK in October 2020, were given special dispensation by the Treasury to bring the lawsuit against Higgins personally, and for two lawyers to spend £4,000 in travelling to St Petersburg to take instructions.

“It’s in my view, ironic and ridiculous that the UK’s Sanctions Act permits oligarchs who are sanctioned for their human rights abuses, and therefore have no reputation, you would think, [to] bring in money to pay their lawyers to repair their reputation that they don’t have,” Robertson said.

The barrister also criticised the soaring costs of defending libel cases in London – Higgins said last week his costs in defending himself against Prigozhin were £70,000. “Britain is not a land of free speech but expensive speech,” Robertson said.

“Law is a market,” Robertson added, in which KCs “can charge upwards of £900 an hour” and junior barristers “half that” while solicitors who specialised in Russian clients can earn “even more than some of the KCs per hour”.

The result is that “a simple libel case that takes two or three days in court is certain to run into over £1m in costs for either side,” Robertson said, adding that “it’s absurd to talk free speech in that context, where publishers risk £1m if they fight” in court.

In December 2021, Roman Abramovich, the former owner of Chelsea FC, settled a libel case he had brought against Catherine Belton, author of Putin’s People, an acclaimed account of the Russian president’s era.

Had the case gone to a full trial, the legal bill was likely to have exceeded £10m. In the end, Belton and the book’s publishers, HarperCollins, agreed to amend the text to make clear that comments that Abramovich had bought Chelsea at the behest of the Russian president did not represent a statement of fact.

Robertson said that the power of “reputation lawyers”, who seek to bring libel and privacy actions, “has been increased” and needed to be brought “under reasonable control”. He highlighted legal letters issued by the law firm Osborne Clarke on behalf of the former UK minister Nadhim Zahawi, sacked by the prime minister on Sunday.

Zahawi’s lawyers had sent the tax specialist Dan Neidle, who had raised questions about the minister’s finances, letters marked confidential and “not for publication” last year. That prompted the Solicitors Regulatory Authority to issue guidance in November that such a label should only be used if private or confidential information was being used to disprove statements intended for publication.

“A lot of people have been hoodwinked into thinking that letters from reputation lawyers have to be kept secret,” Robertson said, when in fact the SRA guidance makes clear it is possible for recipients to “publicise your threatening letter”.

Privacy law has expanded, the barrister complained, to the point where it had become rare to name people arrested or subject to criminal investigation, following a supreme court judgment in a case involving a businessman known only as ZXC.

“Now you have a reasonable expectation of privacy when you are in a police station,” he said. Last year big UK media outlets largely declined to name a wealthy Russian businessman arrested by the National Crime Agency in London on suspicion of money laundering.

A proposed but controversial bill of rights, currently being put forward by the justice secretary, Dominic Raab, would “leave the UK in a worse position than at present”, the barrister said, adding that the minister, himself the subject of bullying complaints, “seems to be taking us completely down the wrong way”.

One section in the bill, marked 4.1, directs the court to give “great weight” to “protecting freedom of speech”. But Robertson said another section, 4.3, makes clear that 4.1 “does not apply” in criminal proceedings, privacy cases and matters of national security, meaning the free speech provision amounts to “bogus rhetoric”.

Robertson’s book, published earlier this month, lists several ways in which he believes the law can be reformed, of which the most important, he argues, is reversing the burden of proof so that it falls on the complainant, not the journalist, writer, newspaper or publisher, to prove their case.

“Libel is the only civil action where a claimant coming into court to demand money throws the burden of proof on the other side,” Robertson said. He also suggested that Russian and other foreign oligarchs should only be able to bring cases “closely connected” to the UK.

Other libel reforms that could bring cases under control, Robertson said, would be to bring back juries in defamation cases, abolished in a 2013 reform, and to broadcast cases. “Claimants want their reputation publicly vindicated, the media argues for the public interest – why should the public be deprived,” the lawyer writes in his book.