*Billionaire Lachlan Murdoch is suing Crikey for defamation over an article discussing the role of Fox News in the January 6 2021 insurrection in Washington, DC.
Sometimes being an oligarch (or perhaps just a simple billionaire) means never having to say you’re sorry — at least not when you have lawyers on tap to SLAPP your critics around.
But now the targets of SLAPP — the onomatopoeic acronym for strategic litigation against public participation — are over it. Journalists, activists and members of civil society are slapping back, urging governments to block the richest of the rich from using laws like defamation to stifle debate.
In the UK, that global financial hub and consequent legal forum of choice by SLAPPsters, one of the last acts of BoJo’s government has been to draft legislation requiring litigation to pass three tests. Is it against public interest journalism? Is there abuse of process such as sending multiple threatening letters? Is there a realistic prospect of success?
Across the channel, the European Commission has released its own draft anti-SLAPP directive in April enabling judges to dismiss “manifestly unfounded” cases against journalists and human rights defenders.
Even in Australia there’s progress, with the first round of model reforms coming into effect in most states last year introducing a pre-trial “serious harm” threshold and a still-untested “public interest” defence.
In the UK, reform has been driven, most recently, by a series of actions by post-Soviet oligarchs against News Corp-owned publisher HarperCollins over two books: Kleptopia by Tom Burgis and Putin’s People by Catherine Belton. The case against Belton made a brief appearance, too, in the Australian courts, when now-sanctioned oligarch Roman Abramovich, represented by defamation plaintiff’s heavyweight SC Sue Chrysanthou, sought to launch a parallel action under Australian law.
The UK cases were settled in March with minor amendments. The question of whether Australia could become a new centre for global defamation (good business for some) by oligarchs exploiting the globalised distribution of content was left undetermined. Expect some billionaire or other to knock on that door again soon.
In Europe, it’s driven by the persecution (and ultimate murder) of Maltese investigative journalist Daphne Caruana Galizia. According to the country’s leading paper, the Times of Malta, Galizia was the most targeted journalist by vexatious lawsuits in Europe for her work exposing corruption. Even after she was murdered in a 2017 car bombing, her family were left defending SLAPP writs.
However, reform has its limits. At the core of the litigation are asymmetric transaction costs. For your typical billionaire, they’re so low as to be meaningless; for your typical journalist, they can be bankrupting.
If you’ve got the money to fund action, you can set and forget. You can hire the best (or at least the most expensive) lawyers, investigators and public relations people and leave it to them. Even if you end up losing, what’s a lazy couple of million for the super-rich?
Australia’s defamation caseload is full of upset rich people, all hurt and embarrassed: Harry Triguboff suing The Australian Financial Review for suggesting Meriton’s stock was poor quality, Kerry Stokes bankrolling the suit by Ben Roberts-Smith against Nine, Clive Palmer suing WA Premier Mark McGowan over border closures and his mining interests.
You can even outsource your “hurt”, funding someone else’s action against an aggravating publication, like tech billionaire Peter Thiel’s support in the US for Hulk Hogan’s action against Gawker, which bankrupted the online gossip site, or the still unknown benefactor of the blind trust that funded the action by Christian Porter against the ABC.
The SLAPP targets have no such luxury. Even if they win, the time, unmet costs and mental exhaustion can be — are designed to be — debilitating. Reports indicate that Abramovich’s aborted Australian proceedings alone cost the publisher about $250,000 for local sales of 46 hardbacks and 761 paperbacks. Their UK costs are estimated at $3 million.
As one of the big five book publishers, HarperCollins can amortise the costs across its business. The company has also adopted the traditional tough-minded approach of its News Corp owner: you fight every action to discourage all the others.
Though it can’t replace the time — and mental energy — lost by individual journalists and writers in defending their work, sometimes it seems you need your own billionaires in your corner to resist the SLAPP.
The more usual targets — individual journalists and smaller publishers — don’t have the same indulgence. It’s why most settle: take down the story, say sorry if necessary, keep costs low. They take the message that billionaires and oligarchs can be too rich for their reporting resources to stomach.
And for the billionaire class, that’s mission accomplished.
Right: any litigation getting to court must be against the public interest; must be an abuse of process; and must have a realistic chance. As if things were not bad enough already! That’s remarkable. Or it’s a spectacular blunder in the quoted part of the article.
I wonder how a prima facie burden of proof could be implemented – that before any lawsuit can be brought it has to show that on the face of it there is merit to the claim. I could imagine this won’t stop vexatious billionaire litigants, but I’d be curious if it meant failure to meet the standard would be punished in some way.
In a democracy where we are all equal before the law, money shouldn’t matter. Anything governments can do to ensure the legal system isn’t the tool of the powerful is a good thing for democracy.
I suspect this is where the idea fails. In order to find out if the litigation has merit the parties will have to go to court to argue about it in front of a judge. Instead of going straight to a hearing of the litigation, there will be a preceding set of hearings about the merits of the litigation. This will of course be complicated and expensive too, with teams of barristers and all the rest of the paraphernalia, and it will be in addition to the main litigation. So what problem does it solve?
My idea would be that the process at the beginning would be entirely on the claimant rather than the defendant – that in effect it would be part of the application process and only once it passes an initial threshold could it even be put to the defendant. I’m sure there are probably very good legal reasons why this couldn’t be done, though.
My concern with the proposal was actually the opposite – that it would be those who are “defamed” without the resources to do something about it who would be at a disadvantage as they wouldn’t have the resources to enter legitimate legal action.
I’ve been curious about this issue for a while after reading about how plutocrats around the world used the UK courts to silence critics thanks to the backward laws the UK had at the time (it’s changed somewhat since the Simon Singh lawsuit brought by British Chiropractors brought attention to the problem and better laws were eventually passed). It was shocking to see that Australia had similar laws.
Shocking? You new here?
~12 years ago I wasn’t much of a reader of this publication outside of election cycles.
Reading Nick Cohen’s You Can’t Read This Book awoke me from my apolitical slumber, and I started paying more attention to issues around free speech as it is practiced.
It has been predominantly a UK and Australian problem, even the former is reforming laws to stop Slapp shopping by non doms and foreign entities to intimidate and shut down public discourse (US had done previously); Australia, nada?
In fact the EU has a draft directive and preamble states:
‘Manifestly unfounded or abusive court proceedings against public participation (commonly referred to also as strategic lawsuits against public participation or ‘SLAPPs’) are a recent but increasingly prevalent phenomenon in the European Union. They are a particularly harmful form of harassment and intimidation used against those involved in protecting the public interest….’
Yes. So the UK will exercise its Brexit-won freedom to carry on hearing SLAPP actions despite the EU, to the immense benefit of international oligarchs and certain very greedy and wholly unprincipled London law firms; and great damage to the public interest.
Mining uses a lot of energy. Putting a carbon tax on their only source of energy would not stop their emissions, it would only increase their use of lobbying and bribes to avoid being crushed out of business. If Labor really wants mining to reduce its fossil emissions, they must allow them access to the alternative – nuclear energy. It would be a simple matter for the Federal Government to flick the environmental regulation that prohibits nuclear. This doesn’t need a reversal of the old antinuclear policy sacred to some ageing hippies. The government only need admit that in the intervening 50 years, no research has indicated damage to the environment by nuclear energy. Mining could then go ahead with business plans for emissions-free nuclear-on-site in the permitting states.
There are several good reasons why investing in nuclear energy is a bad idea. The first and most obvious one is that, like current energy sources, it relies on a finite resource. It is only a short gap solution, and an incredibly expensive one at that. Developing nuclear energy would suck up resources better used to establish renewable energy which does not rely on finite resources. It’s going to have be done one day. Might as well start the process while we still have fossil fuels to ease the transition.
One of the things that proponents of nuclear energy in Australia seem to forget it that you need an incredible amount of water to run a nuclear energy plant.
The Nuclear Energy Institute estimates that, per megawatt-hour, a nuclear power reactor consumes between 1,514 and 2,725 litres of water. This is compared to coal with figures of 1,220 to 2,270 litres per MWh, and 700 to 1,200 litres per MWh for gas. It’s clear to see, just from these brief statistics, that the nuclear energy industry relies much more heavily on water than other sectors. A large nuclear power plant may use up to 1 billion gallons of water a day and, for this reason, they are often built next to rivers, lakes or oceans to utilise the bodies of water. The water is drawn from these sources and heated to create steam to power the turbine. It then condenses and can be reused in the power generation process. However, it is eventually pumped back into the body of water it originated from, albeit at very high temperatures. This can increase the temperature of the natural water source by up to 30 degrees, posing risks to the aqua life.
https://monarchpartnership.co.uk/nuclear-power-water-consumption/
To expect to be able to do this in one of the driest continents on earth is extremely optimistic. I assume the only way you could do it is to have plants on the seaboard with desalination plants nearby. The used water could not be released back onto the ocean without significant environmental consequences so a way of releasing it safely would have to be found. The seaboard, of course, is where the vast majority of our population live. Good luck getting a proposal for a nuclear power plant up anywhere on the coastline, except possibly north west Western Australia, where it would be pointless. You don’t have to be a crusty old hippy to not like the idea of having a nuclear power plant in the extended back yard.
Not always the case. Once – through cooling is in use in multiple countries. It’s complicated as all forms of power generation have their pros and cons.
https://world-nuclear.org/our-association/publications/technical-positions/cooling-of-power-plants.aspx
VJ has regurgitated a pack of familiar misinformation distributed by the antinuclear brigade. They hope that you will believe at least some of these accusations and feel doubt about others. Here’s why you should resist them.
Finite? Uranium is in plentiful supply, with effectively unlimited resources ahead. Recycling would increase the value in current fuel a hundred fold.
Natural resources? You can fit a one-gigawatt nuclear power station easily on a single square kilometre. Many times that area would be required to fit the equivalent three-gigawatts of wind capacity and its (quite hypothetical) gigawatt-days of storage. Renewables’ need for area consumes natural resources that we can ill afford.
Expensive? Obviously big machines are cheaper by the dozen, and we must buy dozens of them. Remember the cost of personal computers before the mass production of the IBM PC? Horseless carriages before the model T Ford?
Fossil fuels to ease the transition? Don’t fall for this – there is no “transition” because no end date ever stated. Anyone proposing that we tolerate fossil fuels until pigs fly is showing a clear intention to never exterminate fossil fuels. The kiddies will condemn our failure to do so.
Cooling water? Inland power stations can use air-cooling (check out “Kogan Creek power station”) with no use of water at all.
Fresh water? The exhaust heat from power stations can convert seawater to freshwater. Coastal power stations can generate fresh water, not consume it.
Contamination? Fossil power stations’ contamination of the atmosphere by CO2 is already doing far more damage to us than any hypothetical increase in local radiation could ever do. While massive storage remains hypothetical, any large-scale renewable generation requires fossil backup that poisons the air for us, our neighbours and our descendants. Which evil do you want?
Threatening? It is the gases coming out of chimney stacks that threaten us most of all. People who are frightened of something as boring as a power station with no chimney stack just haven’t learnt about climate change.
The people who write this stuff rely on you failing to do a reality check. VJ paints a scenario where a power station sits close to seawater but for cooling uses fresh water generated in a dedicated desalination plant powered by the power station. Doesn’t that sound a bit like a snake swallowing its own tail? Of course a power station near the coast would use seawater for cooling and could, as a byproduct, desalinate water to be drunk in the city nearby.
Okay now. Do you realise that renewables cannot provide on-demand power without emissions from their fossil backup? Well, if you agree that no fossil emissions are tolerable, you need to wholly dismiss the doubts raised by antinuclear propaganda.