30-07-2025
- Politics
- The Herald Scotland
Shameful: our libel laws are a plaything for the rich
The law, as it then stood in relation to libel and privacy, sought to ensure that everyone, no matter their means or status, was able to protect their reputation, while those guilty of wrongdoing could be exposed.
Those lofty ideals, it appears, have since been dumped on the spike of journalistic history along with hot metal, paperboys and passive smoking.
Two recent cases illustrate starkly how far we have moved since those days, and in an entirely wrong direction.
This week Brigitte Macron, the wife of the French President, filed a lawsuit against the right-wing podcaster Candace Ownes, over claims that she could be a man.
Meanwhile Donald Trump has filed a $10 billion (£7.5bn) defamation lawsuit against Dow Jones – parent company of The Wall Street Journal – and its owner Rupert Murdoch, over claims that he sent a "bawdy" birthday note to convicted sex offender Jeffrey Epstein.
Irrespective of what you think about the merits of such claims, it is unlikely either would have been brought had the plaintiffs not been financially well endowed.
French First Lady Brigitte Macron, seen here with husband Emmanuel Macron, has filed a lawsuit against the right-wing podcaster Candace Ownes over claims that she could be a man. (Image: PA)
While neither of the cases will be heard in Britain, they might easily have done, such is the popularity of this country as a favoured jurisdiction for libel suits brought by the rich and powerful.
As a result, London has earned the reputation of being the "libel capital of the world" with an estimated 90% success rate in lawsuits encouraging the growth of "libel tourism", where plaintiffs file cases in even if the disputed statements had minimal impact here.
Defamation cases in Britain are the most expensive in Europe, with defendants bearing most costs, while plaintiffs often face little financial risk even if they lose.
It was anticipated that the introduction of the 2013 Defamation Act would reduce the number of claims – because it imposed a 'serious harm' threshold for claimants – but, by 2019, there had been a 127% rise in cases.
Even unsuccessful lawsuits can drain a media company's resources, discouraging investigative journalism. The result is a system where the rich and powerful can manipulate the courts to stifle scrutiny, leaving the public uninformed about potential abuses.
As a corollary there has rarely, if ever, been a time when it has been more difficult for ordinary people, of modest means, to challenge in the courts what is written or broadcast about them.
Legal Aid is not available for defamation cases meaning that, if you bring an action, you will have to fund yourself to meet the court's costs, pay your own lawyer and, potentially, meet the costs of the person you are suing, even if you win.
Tactical application of the law and the use of cynical lawfare tactics such as SLAPPs (Strategic Lawsuits Against Public Participation) and superinjunctions mean that wrongdoers – those whom the law should work to expose – have never been better protected.
The burden of proof in British cases heavily favours claimants, making it perilous for journalists to report on allegations. Unlike in the US, where plaintiffs must prove 'falsity' and 'malice', English and Scottish law place the onus on publishers to defend their reporting – often requiring exhaustive evidence, even when allegations are credible.
This creates a chilling effect, where media organisations avoid naming powerful figures unless they possess irrefutable proof, fostering a culture of "open secrets", where misconduct is widely known but legally unmentionable.
Channel 4 News collaborated with The Guardian and The New York Times to investigate how Cambridge Analytica harvested Facebook users' personal data to influence the 2016 Brexit referendum.
Its then editor Ben De Pear recalls how Facebook responded when journalists sought comment: 'They delayed until the last possible moment. Their statement was published and shared with other news outlets before we even received it. They dodged questions. And their lawyers bombarded us with 30 or 40 pages of dense legal jargon.'
He added: 'Usually, the longer the response, the emptier it is. Skilled journalists and editors can see through it, but it still wastes time and creates unnecessary stress.'
Catherine Belton's 2020 book, Putin's People, prompted multiple lawsuits from Russian oligarchs and state-owned oil company Rosneft, in 2021. Four cases reached preliminary hearings, with HarperCollins settling claims by billionaires Petr Aven, Mikhail Fridman and Roman Abramovich over alleged inaccuracies.
The former FT writer made minor amendments to future editions, though HarperCollins maintained the text was not defamatory. Separately, Rosneft's claims were judged to lack merit, leading the company to drop its case, while Abramovich's claims were partially dismissed and he settled, with no damages paid and only minor clarifications made to the text.
Read more by Carlos Alba
Belton and HarperCollins said they faced distorted media narratives, which plaintiffs exploited to claim victory, despite minimal changes to the book. The writer argued for stronger protections against SLAPPs to ensure accountability and press freedom, warning that lax regulations left the UK vulnerable to legal abuse by wealthy foreign actors.
Unlike when I started in journalism, investigative reporting can now seem more like an expensive hobby than a profession.
You can spend months meticulously gathering documents, interviewing sources, and crafting an article – only to receive a threatening legal letter from a high-priced law firm, forcing you to gut your work or abandon it entirely.
It's not that newspapers and their lawyers doubt the accuracy of your reporting – it's simply that they can't afford the crippling cost of a lawsuit.
What makes the system even more shameful, according to some of those who have been through it, is that victory in court can offer little solace. Even after enduring years of stress and mounting legal bills, a win can feel pyrrhic.
Britain's libel laws ensure a bitter irony: even when you win, you lose. The system punishes persistence, leaving truth-tellers drained and disillusioned.
Carlos Alba is a journalist, author, and PR consultant at Carlos Alba Media. His latest novel, There's a Problem with Dad, explores the issue of undiagnosed autism among older people
