Why do billionaires SLAPP journalists? Because they can*

*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.

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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.