Spiked stories revealed under parliamentary privilege

The spike haunts journalism. For every journalist in the country, legal threats are a persistent concern that can kill stories dead. Stories that are never published leave no imprint on society around them; while the journalist and their editors know of their existence, their readers and society at large are oblivious. We may know that stories are spiked but their true nature, what has been expunged from the public record, is unknown. 

But the Bureau of Investigative Journalism (TBIJ) attempted to change that, to give shape to the stories that have been forced from public attention. On Thursday 21 November, as part of TBIJ’s Silenced Stories project, MPs, protected by parliamentary privilege, presented stories that had been spiked due to legal threats. They came from outlets from across the country, big and small, covering a wide range of topics that the public have a right to know – everything from housing and government contracting to global corruption networks. These are not limited to the big media houses alone. For every national paper that is silenced, a local, independent or community outlet is similarly threatened. While each outlet is different, silence is what they all have in common.

This was an unprecedented view into an erased public record but it only hints at a larger problem. Abusive legal threats are not directed at journalists alone. Anyone who speaks out may be forced into a similar act of erasure – whether on a blog, local Facebook group or online reviewing platform – required to weigh up their desire to speak out against the cost and stress of fighting off legal letters and preparing for court. 

Being a target of a strategic lawsuit against public participation (SLAPP) brings with it a cavalcade of emotional, psychological and financial strain. Malachi O’Doherty was sued by the MLA for North Belfast Gerry Kelly and while he was successful in court, the experience left him scarred, “I didn’t get a penny from him, just a lot of sleepless nights and tinnitus.” Paul Radu of OCCRP, who was sued in London by an Azerbaijani MP put it more bluntly: “Even if you win, you lose.” The toll exacted by defending a SLAPP was documented by the European Court of Human Rights in Strasbourg during the well-known McLibel case, where the fast-food goliath McDonalds sued two activists over the content of a campaigning leaflet. Forced to defend themselves due to the lack of financial resources, Helen Steel and David Morris took on a company, whose financial reserves dwarfed many countries. The impact of this inequality on Morris’ and Steel’s defence was noted in the court’s judgement: “All they could hope to do was keep going: on several occasions during the trial they had to seek adjournments because of physical exhaustion.”

But the impact of SLAPPs reaches well beyond the person in the crosshairs. The ripple effect of censored speech runs far and deep. Readers cannot know what was spiked and those who could act on the information are robbed of the opportunity to make a difference. If the victims and journalists who helped expose the shameful Post Office scandal had been threatened or sued into silence – there were attempts, I might add – we would never have known about one of the largest abuses of justice the UK has ever seen. There would have been no ITV drama, no inquiry and no possibility of remedy for those people so cruelly targeted by this “British institution”. When justice is not forthcoming for those who have been sexually assaulted, warning others through online testimony is one of the few avenues open to survivors. Even as successive governments have committed to support survivors of gender-based and domestic violence, how many have been threatened into silence after their abuser turned to the courts to extend their abuse?

Democracies only function when there is enough information in the public domain to sustain an informed electorate. SLAPPs remove it from the public sphere or even prevent it entering in the first instance. How can democracy function without the information needed for everyone to make an informed decision? 

The new Labour government – while giving lip service to the importance of stamping out SLAPPs – has done little to realise this goal. They are pushing for greater transparency in public life through enhanced reporting, updates to the Ministerial Code, and changes to government contract awards. These should all be welcomed but will only bring about a partial shift in transparency and accountability. Transparency is not for the public sector alone – private actors can seek to shroud themselves in opacity by threatening legal actions. The goal is simple: if their actions are shielded from view how can they be held to account? Public watchdogs – be they journalists, academics, whistleblowers, Facebook groups or local campaigners – fulfil a vital function in this regard but are the most vulnerable to abuse. Without legislative action, every time they attempt to bring something into the light, they risk their financial security and ability to continue their work free from the harassment and abuse that comes with SLAPP threats or actions. 

The debate yesterday was striking in the consensus that emerged across the house. MPs from six parties across the political spectrum spoke powerfully about the curdling impact of legal threats on the public record and our fundamental rights, including the Green Party’s Siân Berry (pictured). They were united in calling for action but the government’s support for an anti-SLAPP law, evidenced by their backing of Wayne David’s Private Members’ Bill before the election, has seemingly evaporated. Heidi Alexander MP, speaking on behalf of the government, stated that “we do not currently intend to legislate in this parliamentary session but we are continuing our work to consider how best to tackle wider abuses of the system in the longer term.” Without the necessary urgency, we have no idea what to expect from the government. This is why the UK Anti-SLAPP Coalition has launched a petition, allowing the public to stand up for free expression.  

Yesterday, many of the gaps in the public record were exposed, but for every story shielded by parliamentary privilege too many remain on the spike. Only when the public can access the information they need to make an informed decision can we ensure democracy is protected.  

 

Journalists have a “right to life”

Hello, readers. This is Sarah Dawood here, editor of Index on Censorship. Every week, we bring the most pertinent global free speech stories to your inbox.

I must confess that today’s newsletter is very bleak, so I won’t be offended if you click away in search of a more optimistic end to your week. We’re reflecting on how journalists are increasingly being silenced globally, not only with the threat of legal retribution or imprisonment, but with death – often with little or no repercussions for those responsible.

This week marked the seven-year anniversary of the murder of Maltese investigative journalist Daphne Caruana Galizia, who was killed in a car bomb attack on 16 October 2017. She reported extensively on corruption in Malta, as well as on international scandals such as the Panama Papers (the historic data leak exposing how the rich exploit secret offshore tax regimes).

Two hitmen were convicted for her murder in 2022, but criminal proceedings are still ongoing against three more suspects, including the alleged mastermind of the assassination and the alleged bomb suppliers. This week, free speech organisations signed an open letter to Malta’s prime minister calling on him to promptly implement robust, internationally-sound legal reform to keep journalists safe in future. The letter pointed to a public inquiry into her death, which found it was both “predictable and preventable”, and highlighted “the failure of the authorities to take measures to protect her”.

The start of this month marked another grim milestone – six years since the death of prominent Saudi journalist Jamal Ahmad Khashoggi. He was a regular contributor to major news outlets like Middle East Eye and The Washington Post, as well as editor-in-chief at the former Bahrain-based Al-Arab News Channel. A vocal critic of his government, he was assassinated at a Saudi consulate in Istanbul, Turkey.

Such attacks on free speech continue. We were appalled, for instance, to learn of the death of the 27-year-old Ukrainian journalist Victoria Roshchyna last week, a reporter from the front-line of the Russia-Ukraine war who had written for Index about her experiences. The circumstances around her death are still unknown, but we know she died in Russian detention.

Increasingly, governments or powerful individuals act with impunity – whereby their human rights violations are exempt from punishment – willfully ignoring international law that states journalists are civilians and have a “right to life”. For many victims, the course of justice is either delayed, as in Caruana Galizia’s case, or the circumstances around their deaths are obfuscated and murky, as in Roshchyna’s. Question marks remain over who is ultimately responsible, or how it happened, creating a cycle of censorship whereby it’s not only the journalists and their reporting that are silenced, but their deaths.

This impunity has been shown in plain sight throughout the Israel-Hamas war. To date, 123 Palestinian journalists have been killed in Gaza by Israeli forces, with the Committee to Protect Journalists concluding that at least five were intentionally targeted. The Israel Defense Forces (IDF) deny these claims, yet an Al Jazeera documentary recently revealed that journalists live in fear of their lives, and their families’. One of the most high-profile cases of a targeted attack was that of Hamza al-Dahdouh, the son of Al Jazeera Gaza bureau chief and veteran journalist Wael al-Dahdouh, whose wife and another two children were also previously killed in Israeli airstrikes. Two Israeli and three Lebanese journalists have also been killed in the conflict, with the International Criminal Court seeking arrest warrant applications for both Israeli and Hamas leaders for war crimes.

All these cases show a growing disregard for journalists’ lives, but also for the very essence of journalism itself. When not threatened with death or physical violence, media personnel are threatened with imprisonment, the closing of legitimate news offices, internet blackouts, and psychological and financial abuse. SLAPPs – strategic lawsuits against public participation – for instance, are being increasingly used globally by powerful and wealthy people as an abusive legal tool to threaten journalists into silence with eye-watering fines. How can “the fourth estate” truly hold power to account, when those in power can so easily dismantle and destroy their means of doing so?

At a time of devastating global conflict, the ability for journalists to report on stories free from the threat of harm, imprisonment, lawsuits or death has never been more important. To protect journalism itself, international and national law must work harder to protect the individuals most at risk. Without the threat of retribution for powerful individuals, the cycle of censorship will only continue.

 

The SLAPP stickers

Ok Rosie. It’s been almost three months since The Sunday Times and Dispatches published allegations of rape and sexual abuse against the comedian Russell Brand. Once again, we’re hearing talk of an “open secret”. I think the question our readers will want to know is - did you ever hear rumblings of sexual misconduct about Brand on the comedy circuit?

Well-

Actually, don’t answer that question. Let me try again. Forget Russell Brand. Let’s say, hypothetically, you heard rumblings of sexual misconduct about a comedian on the circuit. Let’s say, hypothetically, it was an open secret that this comedian had engaged in sexual misconduct. How does that open secret survive?

Well, to take Russell Brand as an example…

No Rosie, we can’t afford to talk about Russell Brand. The man uses seriously aggressive lawyers.

Comedians have been whispering about Russell Brand for years, from the nasty and gross to the downright illegal. About six or seven years ago at the Edinburgh Festival Fringe, two friends of mine talked on stage about Russell Brand being a ████…

Being an alleged ████...

…being an alleged ████ as part of their comedy show. Or they suggested it. I’m not sure. I remember both of them telling me they had been threatened by Russell Brand’s manager. Or maybe it was his agent. I can’t recall. Anyway-

I’m going to stop you there, Rosie. Do you have written evidence of this?

Charlie, obviously you don’t write things down when you are on your third glass of wine in a crowded Scottish outside bar with no seating room left.

Then you can’t say that.

I’m not saying these two comedians had personal knowledge of misconduct. I’m just giving an example of how ubiquitous these rumours were on the circuit and how aggressive his lawyers were in response. Or whoever it was on his team who threatened them - do I need to remember all these details correctly?

Let’s stick to the hypothetical, Rosie. You have two comedians who have received legal threats from a well-known comedian. Let’s say you name this comedian and he sues you for damages, claiming it’s a fabrication. It’s a stupid case - the very fact that he’s suing you actually vindicates the claim that he’s a legal bully - but to get to the point where a judge says “this is a stupid case” would take a year of legal argumentation and hundreds of thousands of pounds in legal costs. Would you take that risk? Can you take that risk?

Charlie, I’ve told you, comedians don’t have any money. Why do you think I always “forget” my card when we go out to dinner? Unless they are, you know, really famous. Like Russell Brand.

Ok, so let’s try again. This time with some sensitivity towards legal risks, please.

I don’t get it. How are we meant to talk about the silencing of sexual abuse survivors while being “sensitive” to their aggressively litigious abusers?

Alleged abusers

Sorry, alleged abusers.

Oh come on, it’s not that hard to talk about a subject like this in the abstract.

Have you ever tried to perform a standup routine in the abstract?

No but -

Well, it would make for really rubbish comedy. It’s a bit like when a politician answers a specific question with a vague platitude. It sounds feeble and weak. But while with a politician it might momentarily undermine their credibility, with a comedian it is fatal. All the best comedy is either unfiltered or appears unfiltered. This is why those in power fear it so much. As soon as comedy feels controlled, forced or affected it loses its power.

Oh come on, you can’t say a few legal threats can kill a whole standup routine.

Thing is, it’s not just about those specific legal threats. Intimidation is like poison to comedy. That’s why a persistent heckler can derail a comedy set: once fear creeps in, the whole facade of authenticity collapses. It takes only a single legal threat for a comedian to second-guess their material, soften their punches and sidestep the truth. And when the audience senses that this is what you are doing they will switch off. This applies to any sort of intimidation - it’s the same reason why online social media mobs can throttle comedy - but legal threats are particularly insidious. You never see them, the public never knows about them and yet few threats are as powerful as the threat of losing all your money in a lawsuit.

I know I was the one banging on about hypotheticals before, but I’m starting to think all of this is a little bit too reliant on hypotheticals.

Then let me give you a concrete example. In December 2018 the Guardian published a story: “Standup comedian’s husband drops defamation case”. The story was about an award-winning comedian, Louise Reay, whose husband had sued her for defamation, breach of privacy and data protection. Louise had mentioned him (though not, I understand by name) in a show, can you believe it, on free speech and censorship. He had money (because he wasn’t a comedian, Charlie) and sued her for £30,000 in damages plus legal costs and sought an injuction to stop her speaking about their relationship. Louise had to GoFundMe her legal costs and, every comedian’s nightmare, had to pre-submit her Edinburgh show to lawyers, and as any comedian knows, you are constantly changing your show to the last minute and in the moment depending on audience reaction. Her ex-husband didn’t just hurt her financially; he ruined her comedy. The idea of having lawyers pre-approve my jokes is making me break out in a cold sweat.

That’s awful. But one person’s experience is hardly evidence of a systemic problem is it?

But it’s not just Russell Brand. When rumours started circulating that an “open secret” about a predatory comedian was about to be exposed, the reaction of most comedians on the circuit was - which one? No one really doubts there is a problem, much as no one really doubts the causes. I could give you numerous other examples I know of where comedians have had to remove whole passages from standup acts, articles or books about celebrity misconduct, but these are allegations that have remained unpublished, such as -

Oh what a shame, it seems we’ve reached our word limit. Any final words, Rosie?

Yes: ████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████Please get in touch at [email protected] if you’ve been impacted by SLAPPs or would like to get involved in the UK Anti-SLAPP Coalition, and visit our website at antislapp.uk/contact/ to sign up to our newsletter.

You’re going to delete that and replace it with your own campaign promotion aren’t you?

I’m afraid so, yes.

The UK Anti-SLAPP Coalition welcomes Wayne David MP’s Anti-SLAPP Bill

Today, Wayne David MP will present the Strategic Litigation Against Public Participation Bill, his Private Members’ Bill, to the Houses of Parliament. This is a crucial milestone for the UK to stamp out all SLAPPs targeting public interest reporting. Irrespective of the identity of the public watchdog or the issues they are covering, a standalone bill is necessary to ensure that abusive legal threats and actions cannot continue to stifle free speech.

With a general election expected next year the introduction of this standalone Bill is the start of an important process. If the Bill is bold and expansive enough to protect all forms of free expression, protect British courts against abuse and disincentivise further SLAPPs, the impact it can have cannot be overstated.

The UK Anti-SLAPP Coalition, of which Index on Censorship is a co-founder and co-chair, will monitor and engage with the process to ensure the protections are as robust, clear and accessible as possible. The threats to people such as Carole Cadwalladr, Catherine Belton, Tom Burgis, Nina Cresswell, openDemocracy and The Bureau of Investigative Journalism (TBIJ), as well as the countless others who have been subject to legal intimidation demonstrates the urgent need for action to ensure free speech remains free.

If the details of the Bill are fleshed out in line with our Model Anti-SLAPP Law, this could be a hugely significant step to address the gaps in the recently passed Economic Crime and Corporate Transparency Act (ECCT) that established important, although limited, anti-SLAPP protections for those reporting on economic crime. While the Coalition welcomed the recent formation of the UK Government-led taskforce on non-legislative measures to tackle SLAPPs, we have always believed anti-SLAPP legislation to be an indispensable part of any initiative to tackle SLAPPs. The Bill announced today brings us closer to this goal.

Wayne David, MP for Caerphilly said: “It is vital that in a healthy democracy there is protection for everyone who speaks out in the public interest. Whether it is victims of sexual violence, journalists, whistleblowers or academics, there must be freedom for those who speak out. This Bill would ensure that there is that freedom in law. I look forward to working with members of the UK Anti-SLAPP Coalition and others to ensure that this Bill reaches the statute book.”

The UK Anti-SLAPP Coalition co-chairs said: “We welcome the announcement of Wayne’s Private Members’ Bill today. While the devil will be in the detail, this is a significant step towards ensuring British courts cannot be abused to shut down public interest speech. As always, we will assess the Bill with reference to the standards we have established in our Model Anti-SLAPP Law. We call on all Parliamentarians, irrespective of party, to continue the already fruitful cross-party collaboration on this issue to ensure we can stamp out SLAPPs without delay.”

Notes:

  • The Long and Short Title for the Private Members’ Bill can be found here: https://commonsbusiness.parliament.uk/Document/83383/Pdf?subType=Standard#p age=20
  • The UK Anti-SLAPP Coalition: https://antislapp.uk/
  • The Model Anti-SLAPP Law can be viewed here: https://antislapp.uk/wp-content/uploads/2023/05/Model-UK-Anti-SLAPP-Law-Final-Ve rsion.docx.pdf
  • The UK Anti-SLAPP Coalition response to the passage of the Economic Crime and Corporate Transparency Act: https://antislapp.uk/2023/10/26/a-landmark-moment-but-we-cant-stop-here/

The UK Anti-SLAPP Coalition: The UK Anti-SLAPP Coalition is an informal working group established in January 2021. It comprises freedom of expression, whistleblowing, anti-corruption and transparency organisations, as well as media lawyers, researchers and academics who are researching, monitoring and highlighting cases of legal intimidation and SLAPPs, as well as seeking to develop remedies for mitigation and redress.

The coalition has worked to make the case for structural and meaningful responses to SLAPPs. The coalition, which meets monthly, brings together expertise from a range of different fields to engage with policy-makers, regulators, media outlets and other organisations to ensure that the right to free expression and the ability for all to participate in society around them is not restricted by vexatious legal threats deployed by the wealthy and powerful seeking to shutdown scrutiny and democratic accountability.