So in place of a technical explanation, I will use a real-life example. In 1993, UK prime minister John Major sued a small, left-of-centre magazine, The New Statesman*, for libel. A story in the magazine had referenced wide-spread rumours in the UK’s political class that Major had engaged in an extra-marital affair. The New Statesman story wasn’t really about the affair, but about the currency of the story. It provided Major with the opportunity to strike, however.
The Prime Minister sued the magazine, its printers, its distributors, and the wholesalers. The New Statesman at that time was a marginal economic operation that scraped to make ends meet – so from the outset it was clear that the magazine would struggle to survive such a legal onslaught. No less clear was Major’s intent. He wanted to stamp the story down in such a way that no other journalist would dare to even hint at his out-of-trouser proclivities.
The printers, distributors and wholesalers settled almost at once – relieved that they could recover their costs from the magazine. The New Statesman launched a crowd funder, which remarkably brought in around £100,000. Eventually, however, as costs mounted, the magazine felt that it had to settle – agreeing to pay Major £1,000 in damages, but also having to meet the combined legal costs of around £200,000. That the magazine survived is a minor miracle. For Major, however, it had the desired effect. Journalists stopped digging around his private life, and coded references to his bedroom athleticism disappeared.
It is a text-book example of a SLAPP, particularly where the cost and procedural demands of answering a legal challenge are beyond all but the wealthiest and most determined publishers. Actions like this are pursued in jurisdictions all over the world, taking different forms depending on the laws in place. Current favourites in the UK include alleged data protection breaches, and intrusions into personal privacy.
Ending this kind of bullying of journalists is the stated objective of new provision in UK law introduced as part of the Economic Crime and Corporate Transparency Act. It became law at the end of October. This new statute will allow a judge to dismiss legal actions at an early stage where they suspect that a legal action has been initiated simply for the purpose of shutting down journalistic inquiry.
Dealing with SLAPPs is clearly in the air, a growing number of jurisdictions have adopted anti-Slapp laws, including 33 US states, three Canadian states. The EU is also considering legislation to lift the legal boot from journalists’ throats – even if few are convinced by the current draft.
The UK law is a good thing. The need to protect journalists from vexatious litigants, could hardly be clearer. British journalists Carol Cadwalladr, Cathrine Belton, Tom Burgis, and many others have all suffered legal harassment, over many years, simply because they chose as subjects wealthy people who prefer that their affairs remain in the shadows.
The new law is a significant acknowledgement by the UK Government, of the issues faced by journalists. It is statutory recognition that civil law has the potential to be used a tool to harm free expression, buttressed by powers for judges to intervene when this happens. This is a real advance. However, as the experienced defamation solicitor David Hooper says: “``(the law) has a number of shortcomings, being a piecemeal and unduly complex fix. It may well provide a good living for claimant lawyers for years to come”.
More importantly, however, its scope is very narrow. It applies only to ‘economic crime’, not cases such as those mounted by the former Prime Minister.
Nine years after Major brought his case against the New Statesman, one of his former parliamentary colleagues, Edwina Curry, published a memoir. In it, she revealed that she and Major had engaged in a four-year sexual liaison during the 1980s.
When Currie’s book came out, Major said that he was ‘ashamed’, but that his wife had forgiven him. The former Prime Minister has yet to show any remorse towards the journalists who he put through hell, nor offered to repay the costs that nearly destroyed one of the UK’s few leftish editorial voices.
As Steve Platt, editor of The New Statesman at the time it was sued has written: “(Major’s lawsuit was against) the weakest kid in the playground and was designed to keep the bigger bullies of the press from kicking him around instead".
For so long as laws that allow groundless, and hypocritical bullying of journalists remain in the statute book, my celebrations will be mute. I note that my assessment is widely held.
Full disclosure, I served as The New Statesman Scotland correspondent for several years during the 1990s, although not, I think, at the time that Major sued.
Tim Dawson is deputy general secretary of the International Federation of Journalists (IFJ)