Slapps, lawfare and Buying Silence: How the wealthy and powerful evade scrutiny

The onomatopoeic acronym Slapps and the portmanteau word lawfare are both pointed coinages that, though in existence for decades, have surged in use along with the proliferation of the chillingly aggressive phenomena they describe. Anyone who doesn’t already find this alarming really should do.

Strategic Lawsuits Against Public Participation (Slapps) are like snowflakes or unhappy families — no two are exactly alike. They are unified by their purpose: to censor, intimidate and silence critics of the powerful and wealthy.

Now a new book traces the origin of Slapps and their worrying facilitation by the courts. In Buying Silence: How oligarchs, corporations and plutocrats use the law to gag their critics, published by Biteback Publishing, veteran UK libel solicitor David Hooper explores the key cases and their sinister fallout. This is not pretty stuff.

One such oligarch and an early visitor to London’s ‘reputation laundromat’, Grigori Loutchansky, is remembered ‘for the fact he appeared to wear a different Rolex each day’ to his libel case against the Times

So many “Slappsters” have, by now, enthusiastically deployed scare tactics to stifle public interest journalism, a history of them could easily have run on: Hooper, who has represented publishers, politicians and other high-profile people, but always acted against rather than for oligarchs, is succinct, yet still includes the telling detail of someone who has been unnervingly close to the action.

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One such oligarch and an early visitor to London’s “reputation laundromat”, Grigori Loutchansky, is remembered “for the fact he appeared to wear a different Rolex each day” to his libel case against the Times. Hooper’s trip to Moscow to seek evidence of libel tourist Boris Berezovsky’s links to organised crime, meanwhile, requires him to hire an armed bodyguard “equipped with black beret”.

As an example of “asymmetric lawfare”, Hooper cites the letters sent by libel solicitors acting for Nadhim Zahawi, short-lived British chancellor of the exchequer, to tax lawyer Dan Neidle, who had written about Zahawi’s potential tax avoidance. These were captioned “strictly private and confidential, not for publication”, often in capital letters and bold type.

The captions, apparently insisting that Neidle not breathe a word about the threat of legal action, were “just hot air”, Hooper writes, but are the sort of ploy that can panic non-lawyers as well as those who are “understandably risk-averse”.

What Buying Silence captures especially well is the sheer gall of the age of “alternative facts” in which those who have a surfeit of money are enabled by the legal system in their bids to re-landscape the truth.

Suing individuals rather than better-resourced media empires is a common feature of the Strategic Lawsuit Against Public Participation

More than one claimant later brags about the very thing they sued over. Among them is Yevgeny Prigozhin, whose failed rebellion against the Kremlin in June preceded his unsurprising death in August. His complaint against Eliot Higgins, founder of investigative agency Bellingcat, included an objection to his linking to the mercenary Wagner Group. Subsequently, as Hooper drily adds, Prigozhin “issued a press release admitting and remembering that he had after all founded the Wagner Group”.

Suing individuals rather than better-resourced media empires is a common feature of the Slapp: Prigozhin sued Higgins personally, rather than going after CNN or Der Spiegel, both of which had published articles based on the Bellingcat investigation.

Likewise, when Arron Banks, the multimillionaire founder of the Leave.EU campaign, took action over a comment made by Carole Cadwalladr in a TED [technology, entertainment and design] talk, the case was against the freelance journalist herself, not the US-Canadian TED platform that had published her remarks.

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Hooper’s own profession does not emerge intact, with the author taking a dim view of the English media lawyers who “lined up to take the Russian rouble”, most obviously in the flurry of writs made against Catherine Belton’s book Putin’s People, published in 2020 by HarperCollins.

Lawyers acting for claimants, rather than being free to play a “legal game of poker, which favours those with access to the largest pile of cash”, should be required to place their cards on the table face upwards, he argues, while justice should be swifter and less expensive, with more weight given to the public interest defence.

Buying Silence revolves around how London earned its moniker as “a town called Sue”, but the topic of Slapps — and the existential risks posed by costly defamation proceedings more generally — has triggered much concern in Irish circles, too.

Most recently, in response to a move by Sinn Féin TD Chris Andrews to issue defamation proceedings against The Irish Times as well as personally against The Irish Times political correspondent Harry McGee over an article about the party’s response to the Hamas attack on Israel, the National Union of Journalists (NUJ) dubbed the use of Slapps “bad for journalism, bad for citizens and poisonous for democracy”.

Slapps are unlikely to disappear with just one piece of legislation. In the UK, as Hooper notes and the Oireachtas committee heard, Slappsters increasingly invoke privacy, data protection and intellectual property law rather than defamation

Earlier this year, the Ireland Anti-Slapps Network — an umbrella group representing organisations including Index on Censorship, the Irish Council for Civil Liberties and Transparency International Ireland — called for measures that would allow for the quick dispatching of “any case that can reasonably be determined to have been filed with an improper purpose”.

In its September report on the Defamation (Amendment) Bill, the Oireachtas justice committee has urged a “more inclusive” definition of what constitutes a Slapp than was contained in the Bill’s general scheme and recommended that judges be offered training on how to recognise one.

Alas, Slapps are unlikely to disappear with just one piece of legislation. In the UK, as Hooper notes and the Oireachtas committee heard, Slappsters increasingly invoke privacy, data protection and intellectual property law rather than defamation. This evolution confirms how Slapps are less about seeking redress for reputational damage caused by inaccurate journalism than they are a weapon in the long game of muzzling opposition and evading scrutiny.

As Hooper’s Buying Silence makes plain, the “mischief and power” of Slapps goes well beyond the headline-making cases to “all the unpublished articles and books and unbroadcast TV programmes” that have been killed off by pre-emptive lawfare. It’s the cases we never get to hear about that are the problem.

The nub of it is that media outlets that once had the financial firepower to fend off legal actions are no longer guaranteed to do so. Self-censorship flourishes. Even when they don’t win, the super-rich — and their lawyers — tend to win.