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For years, oligarchs and other wealthy foreigners and corporations have used British courts to sue journalists over reporting they don’t like, taking advantage of the country’s historically weak libel laws. Russia’s invasion of Ukraine, and Britain’s subsequent sanctioning of Russian oligarchs, has shined a harsh new spotlight on the practice. Earlier this month, Bob Seely, a lawmaker in the governing Conservative Party, took advantage of a doctrine that shields British lawmakers from legal liability for things they say in Parliament to name and shame elite British attorneys and law firms that, he said, have helped Russian oligarchs try to silence their critics, and called for action. “A free press should be intimidating kleptocrats and criminals,” he said. “Why have we got to this position in our society—a free society, the mother of Parliaments—where we have kleptocrats, criminals, and oligarchs intimidating a free media?”
This week, two British journalists who have found themselves on the receiving end of such “lawfare” tactics themselves appeared in Parliament, to testify before a committee. Catherine Belton—a Reuters reporter who, along with her publisher, HarperCollins, was sued by four oligarchs and the Russian state oil company Rosneft over a book about the rise of Vladimir Putin and his associates—told lawmakers that British libel laws currently favor “deep-pocketed litigants” who are subjecting the media to a “reign of terror.” (The suits against Belton have since been settled.) Tom Burgis—a Financial Times journalist who, along with his paper and HarperCollins, was sued by a Kazakh mining company—described the “psychological pressure” of receiving legal letters on behalf of powerful interests, usually with a “tone of righteous indignation where the journalist is said to have behaved appallingly.” (Burgis claimed that one law firm threatened him with details of a private meeting that seemed to have been obtained using surveillance; one case against him was recently dismissed and another was dropped.) Both reporters called for better protections against slapps, or strategic lawsuits against public participation, which aim to tie journalists in litigation to curb their reporting on damaging truths.
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Yesterday, the British government responded to these calls, kickstarting a two-month consultation on tackling slapps and laying out a number of options under consideration, including a cap on the costs that litigants can recover from libel cases, restraint orders for repeat litigants, a stronger “public interest” defense for defendants, and an ability for courts to throw out slapps more quickly. Intriguingly, the government also said that it might introduce an “actual malice” standard, presumably requiring litigants to prove that a given defendant acted with a reckless or knowing disregard for the truth. (Currently, as The New Yorker’s Patrick Radden Keefe notes in a new piece on oligarchic influence in London, the defendant must prove their claim.) Announcing the consultation, Boris Johnson, the prime minister, referenced his own background as a journalist as he declared that “we must never allow criticism to be silenced.”
At least where public figures are concerned, “actual malice” has been the standard in US defamation law since the Supreme Court’s landmark 1964 ruling in the New York Times v. Sullivan case. It may not be for much longer. In recent years, high-profile conservatives, not least Donald Trump, have argued that US libel law is too stringent; last year, justices Clarence Thomas and Neil Gorsuch seemed to concur in a Supreme Court dissent, with Gorsuch castigating the Sullivan precedent as “a subsidy for published falsehoods on a scale no one could have foreseen” that doesn’t work in an age of mass information—and disinformation.
Last month, Sarah Palin took the Times to trial over an editorial that wrongly accused her of inciting a mass shooting; the judge and jury both ruled that the Times did not act with actual malice, but Palin appealed yesterday. Some observers fear that the case could end up before the Supreme Court and that other right-wing justices, who have increasingly been critical of the media, may side with Thomas and Gorsuch. Other experts—including Stuart Karle, a media lawyer for CJR and others who recently discussed the case on our podcast, The Kicker—don’t think that Palin’s suit is likely to lead to the overturning of Sullivan, arguing, among other points, that if the justices want to chip away at the actual-malice standard, they’re more likely to use a case involving a less high-profile plaintiff. But the threat, clearly, remains.
The Sullivan precedent is also at issue in a bevy of other ongoing cases, with voting-technology companies and other plaintiffs suing right-wing media outlets for helping to spread Trumpian conspiracy theories about the 2020 presidential election. Last week, a judge allowed one such company, Smartmatic, to proceed with parts of a defamation suit against Fox, ruling that the plaintiff has thus far “pleaded facts sufficient to allow a jury to infer that Fox News acted with actual malice”; yesterday, Fox appealed and countersued Smartmatic for legal costs, arguing that the network has a constitutionally protected right to cover and convene debate on issues of public concern. (Fox’s claim against Smartmatic invokes an anti-slapp law that New York instituted to protect defendants against frivolous lawsuits. Trump also recently invoked that law to countersue E. Jean Carroll, a writer who has accused him of both rape and defamation, but a court this week threw his anti-slapp claim out.)
Some First Amendment experts recently told the Times that they actually want the election defamation cases against right-wing media to succeed—because, perhaps ironically, the opposite outcome could bolster largely right-wing claims that the Sullivan standard is too high to ensure accountability for the publishing of falsehoods. Others, including Reason’s Elizabeth Nolan Brown, have pushed back on that logic, arguing that these suits’ succeeding would itself weaken the Sullivan standard, with ramifications for news outlets of every stripe.
Whatever the eventual outcome of these individual cases, journalists should be wary of any rationale that erodes the actual-malice precedent as currently applied. The information environment today is clearly very different from that of 1964, but the basic threat at issue in Sullivan—a powerful person suing a news organization in a bid to curb speech around issues of pressing public interest—is timeless, as a glance at the UK proves. It’s not yet clear how or whether Britain will move to implement its own actual-malice standard—doing so in any comparable way to Sullivan would upend British libel law across the board, whereas other reforms under consideration would seem, to me at least, to be more narrowly tailored to officials’ immediate objective of causing Russian oligarchs pain. (Plus, if we are to glean any lessons from Boris Johnson’s journalistic background, it’s not to take his pledges at face value.)
Still, the direction of travel in Britain is more promising than in the US right now—and while the US libel debate has not centered around coverage of foreign corruption, the threats that journalists in the two countries face are not as different as they might first appear. If we often cite Thomas’s and Gorsuch’s skepticism of Sullivan, we forget the particulars of the case in which they laid it out, which was brought by the son of Albania’s former prime minister against an author who suggested that he had links to an arms-dealing scandal. As Casey Michel, who has written about international kleptocracy, noted in The New Republic last year after Belton was sued in the UK, oligarchs have also recently gone after journalists in US court, which can have a chilling effect even if litigants must meet a higher legal bar. If US and UK libel laws are to align, we must hope that they meet at this bar, and not at a lower one.
Below, more on Britain, the media, and the war in Ukraine:
- “Online harms”: Also yesterday, the British government set out the details of an “Online Harms” bill that will seek to hold technology companies liable for removing harmful content from their platforms, with provisions aimed at tackling a wide range of issues, from anonymous trolling to “cyberflashing”; officials said that news content will be exempted from the bill’s scope, though journalists have previously raised concerns as to how this might be defined and enforced. For Politico, Annabelle Dickson profiled Nadine Dorries, Britain’s culture minister who is overseeing the legislation. According to Dickson, Dorries once asked Microsoft when it would move to “get rid of algorithms.”
- Breaking this morning: As Russia prepared to invade Ukraine, the British government requested that Ofcom, the country’s independent media regulator, review the license of RT, a Russian state broadcaster, to air in the country. After Russia invaded, the European Union banned RT from broadcasting on its territory, which had the effect of also knocking the channel off the air in the UK for technical reasons. This morning, Ofcom announced that it is also revoking RT’s license, arguing that Putin’s recent criminalization of independent journalism about the war makes it impossible for RT to meet British impartiality standards. (RT can still reach Brits online.)
- A big sports story: Amid mounting pressure, the British government recently sanctioned Roman Abramovich, a Russian oligarch who was among those to sue Belton and is the owner of London’s Chelsea soccer club. The club is now set to be sold, with Abramovich banned from making any money from the sale. The deadline for bids is today, with several US businessmen said to be interested. Among them is Hansjörg Wyss, a Wyoming-based Swiss billionaire who last year considered joining an attempted takeover of Tribune Publishing, a US newspaper firm, before pulling out.
- Two wars, two escapes: CJR’s Caleb Pershan spoke with Sahar Merzaie, a BBC staffer in Afghanistan who fled Kabul as the Taliban took the city last summer, was taken to Ukraine, and recently had to flee that country, too, following the Russian invasion. (She made it to Poland and is planning to apply for asylum in Germany.) Initially, “in Kyiv, people spoke of war, but didn’t seem to take it seriously,” Pershan writes. “Merzaie did. ‘I was constantly thinking about experiencing another war,’ she said.”
Other notable stories:
- Chris Cuomo—who was fired by CNN in December after he was found to have been more active than previously known in helping his brother, the former New York governor Andrew Cuomo, battle allegations of sexual misconduct, and has since himself been accused of sexual assault—is taking the network to arbitration. Cuomo, who denies the assault claim, is asking for a hundred and twenty-five million dollars: fifteen million to pay out the rest of his contract, plus additional compensation for “future wages lost as a result of CNN’s efforts to destroy his reputation.” Lawyers for Cuomo claim that Jeff Zucker, CNN’s ousted president, knew about and was complicit in efforts to help Andrew.
- Christianity Today, the evangelical magazine, published an external assessment as well as a story by a news editor investigating a history of unchecked sexual harassment at the publication. “Women at CT were touched at work in ways that made them uncomfortable,” Daniel Silliman writes. “They heard men with authority over their careers make comments about the sexual desirability of their bodies. And in at least two cases, they heard department heads hint at openness to an affair.” At least six staffers reported harassment by two bosses over a period of twelve years, but no action was taken.
- According to Katherine Sayre and Omar Abdel-Baqui, of the Wall Street Journal, gambling regulators in Nevada and Indiana are investigating Barstool Sports and Penn National, a gaming company that has a stake in Barstool, after Insider published allegations of sexual abuse against Dave Portnoy, Barstool’s founder. Portnoy has sued Insider for defamation; Penn, which is looking to acquire Barstool, is standing by him and still sees the company as key to its future “in sports betting and digital media.”
- For the Times, Jenny Nordberg has the story of Cissi Wallin, a Swedish writer and actor who was convicted of defamation after alleging, at the height of the #MeToo movement, that Fredrik Virtanen, a prominent journalist, drugged and raped her. Wallin not only faces possible jail time, but is about to be prosecuted again after self-publishing a memoir about her experience—even though the book doesn’t name the man.
- For Teen Vogue, Alejandra Caraballo and Heron Greenesmith argue that right-wing media is dictating the conversation on trans rights without adequate pushback from the mainstream press or rights groups. “Right-wing anti-trans narratives are proliferating in the political sphere, setting up 2022 to be the worst year for anti-trans legislation in history. Already, more than 70 anti-trans bills have been introduced in state legislatures.”
- Colleen Connolly and Alexander Russo, of The Grade, spoke with a dozen education reporters for an oral history of their experiences during the pandemic. “We had trouble doing what’s most important—getting out there inside schools and talking to families,” NPR’s Anya Kamenetz says. “Americans started talking about schools, childcare, etc., and we led the news for a period of time. I hope we can keep that energy and attention.”
- Gannett is planning to stop printing roughly twenty of its newspapers in the Boston area, switching them to be online-only. The Boston Business Journal’s Don Seiffert reports that some titles will also be merged as part of the change. Elsewhere, Gannett is planning to outsource the printing of its eleven dailies in Wisconsin to the Peoria Journal Star in Illinois, costing nearly two hundred jobs. Poynter’s Rick Edmonds has more.
- In January, as artists fled Spotify in protest of Joe Rogan and others spreading covid misinformation on the platform, Prince Harry and Meghan Markle, who have an exclusive deal with the company, confirmed that they had raised concerns internally about the matter. Variety’s Todd Spangler reports that the couple’s production firm is now satisfied that Spotify is addressing the issue. Meghan will launch a podcast this summer.
- And on Tuesday, Armando Linares López, the director of a news site in the Mexican state of Michoacán, was shot dead outside his home—the eighth journalist to be killed in the country already this year. One of the others was Roberto Toledo, who worked with Linares at the same publication in Michoacán. “We don’t carry weapons,” Linares said in a video about Toledo’s death. “We only have a pen and a notebook to defend ourselves.”
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