As Britain Looks to Strengthen Its Libel Laws, the US Weighs Weakening Its Own

From CJR’s The Media Today by Jon Allsop:

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 shone 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 who, 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.

Yesterday, the British government responded to these calls, kickstarting a two-month consultation on tackling SLAPPsand 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 Sullivanprecedent 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 observersfear 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 to 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 actually 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 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 law is to align, we must hope that they meet at this bar, and not at a lower one.

Below, more on Britain and the media:

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