By Joshua Ng
The Russian invasion of Ukraine has sparked a wave of sanctions against Russian oligarchs, many of whom have assets in the UK. [1] At the same time, these oligarchs are coming under increasing journalistic scrutiny for their ties to Putin’s regime. [2] However, this raises a whole host of issues, such as the fact that said scrutiny can be curtailed by a Strategic Lawsuit Against Public Participation (SLAPP). [3] It is this issue that this post is primarily concerned with — in particular the weaknesses of existing defences.
What are SLAAPs?
The idea behind a SLAPP is that the subject of an exposé can bring proceedings for defamation against the exposé writer. The goal is not to win the lawsuit, but to “punish” the journalist for writing his piece through the cost of the legal proceedings; naturally, this disproportionately affects the journalist, who usually has fewer financial resources compared to the plaintiff. [4] The existence of SLAPPs has the additional effect of deterring future journalistic scrutiny, given that no sane individual would want to risk a costly lawsuit.
Existing defences
Of course, a defamation lawsuit will have defences. Under the Defamation Act 2013, if the defendant can prove that their statement was either truthful; an objectively reasonable and honest opinion; or concerns a matter of public interest, etc., they might be afforded a defence against the claim [5]. However, given that the primary purpose of SLAPPs is not to win, the efficacy of these defences is limited — the burden of proof for these defences lies on the defendant, [6] who is likely to expend a significant amount of resources establishing the defence.
Reform
The UK government has recently turned their attention to this issue, with measures such as cost caps on legal fees being proposed. [7] Cost caps might well be the fairest method, given that said caps will not be unfairly influenced by the financial means of either party. However, law firms are primarily profit-driven, and it is possible that a cost cap will disincentivise lawyers from taking on defamation work. At the same time, bluntly shifting the burden of proof onto the plaintiff is hardly an improvement. Such an approach would unfairly disadvantage the plaintiff if they had a meritorious case, while being of lesser means than the defendant.
It is submitted that a possible solution lies in the approach the Criminal Law takes to consent. The burden of proof for a defence to defamation need not fall completely on the defendant or the plaintiff; instead the defendant should only need to raise sufficient evidence to adduce a defence, after which the burden of proof will fall on the plaintiff. This rectifies the issues caused by a resource gap between both sides, while at the same time avoiding issues caused by cost caps.
Conclusion
To conclude, problems undoubtedly exist with the current approach to defamation. At the same time, these problems are not easily resolved, with the Government having to balance between the competing interests of plaintiffs and defendants. Only time will tell if the way that the Government resolves the issue will be satisfactory.
References
[1] Prime Minister’s Office, ‘Press Release: Abramovich and Deripaska among 7 oligarchs targeted in estimated £15 billion sanction hit’, https://www.gov.uk/government/news/abramovich-and-deripaska-among-seven-oligarchs-targeted-in-estimated-15bn-sanction-hit, accessed 1 Apr 2021
[2] David Segal, ‘Do Russian Oligarchs Have a Secret Weapon in London’s Libel Lawyers?’, The New York Times, https://www.nytimes.com/2022/03/29/business/oligarchs-london-putin-russia.html. Accessed 1 Apr 2021
[3] Haroon Siddique, ‘What are Slapps and how are they connected to Russian oligarchs?’, The Guardian, https://www.theguardian.com/law/2022/mar/04/what-are-slapps-and-how-are-they-connected-to-russian-oligarchs, Accessed 1 Apr 2021
[4] Ibid
[5] Defamation Act 2013, s2 - 7
[6] Ibid
[7] Pinsent Masons, ‘UK government outlines proposals to strengthen freedom of speech’, https://www.pinsentmasons.com/out-law/news/uk-government-proposals-strengthen-freedom-speech, Accessed 1 Apr 2021