Abramovich v (1) HarperCollins Publishers Limited (2) Catherine Belton [2021]


Mr. Abramovich has won the first round of his libel case against publisher HarperCollins as the High Court today ruled that allegations made against him are defamatory at common law. While, in a separate judgment on state-owned Russian energy company Rosneft’s claim, the court found that three of the four meanings contended for by the claimant were not defamatory at common law.


These libel actions arose out of the publication of Journalist Catherine Belton’s 2020 book Putin’s People: How the KGB Took Back Russia and Then Took On the West – which covers the emergence of Putin’s regime.


Russian businessmen Mikhail Fridman, who also brought a libel claim against HarperCollins, and Petr Aven, who brought a data protection claim against the publisher, settled their claims during a preliminary hearing in July 2021.


"Chelsea FC"by Ungry Young Man is licensed under CC BY 2.0


Judgment


During Mr. Abramovich’s hearing, the High Court was asked to determine the natural and ordinary meaning of the statements complained of, whether they are defamatory at common law, and whether they are, or include, a statement of fact or an expression of opinion.

Justice Tipples concluded in her judgment that when taking into account all contextual factors, the meanings identified in her judgment are all defamatory of the claimant at common law and are all statements of fact.


These statements included claims among others that Mr. Abramovich is under the control of President Putin, that Mr. Abramovich purchased Chelsea Football Club in 2003 at the direction of President Putin and that Mr. Abramovich acted as a cashier to the former Russian President Boris Yeltsin.


The judgment focused ultimately on determining the meaning which would be placed on the words of the book by the ordinary reasonable reader. While Justice Tipples also noted that “in determining meaning, context is everything” and that the court must be wary not to be too rigid or formulaic when ruling whether a statement is fact or opinion.


The judgment noted that the defendants were too analytical in their approach, and it was incorrect for them to ignore the contextual factors surrounding the defamatory comments. Justice Tipples recognised it would be impossible to view the comments outside of the picture presented in the book of Mr Putin’s totalitarian regime. By viewing the comments through this lens, the meanings identified in the judgment were found to all be defamatory.


In another blow to the defendant, these defamatory words were determined to be statements of fact as this is how the words would strike the ordinary reasonable reader. Justice Tipples viewed in a large part that the author presented to the reader facts derived from her research. This decision was primarily established through the use of Justice Nicklin's judgment in Koutsogiannis v The Random House Group Ltd [2019]:


“... when determining whether the words complained of contain allegations of fact or opinion, the court will be guided by the following points:


(i) The statement must be recognisable as comment, as distinct from imputation of fact.

(ii) Opinion is something which is or can be reasonably be inferred to be a deduction, inference, conclusion, criticism, remark, observation etc.

(iii) The ultimate question is how the words would strike the ordinary reasonable reader. The subject matter and context of the words may be an important indicator of whether they are fact or opinion.

(iv) Some statements which are, by their nature and appearance opinion, are nevertheless treated as statements of fact where, for instance, the opinion implies that a claimant has done something but does not indicate what that something is, ie the statement is a bare comment.

(v) Whether an allegation that someone has acted “dishonestly” or “criminally” is an allegation of fact or expression of opinion will very much depend on context. There is no fixed rule that a statement that someone has been dishonest must be treated as an allegation of fact.”


Justice Tipples stressed that the subject matter and context of the words were the key factors in finding the statements as not recognisable as comment. Instead, the allegations made against Mr. Abramovich could only be judged to be words of fact.


Comment


This judgment highlights the court’s desire to build upon previous case law such as Stocker v Stocker [2019] in ascertaining the broad impression of the ordinary reasonable reader having read the whole book. It is also striking how Justice Tipples emphasises throughout her judgment how she would remain removed from an overanalytical and mechanical process, and instead use a more holistic approach which extensively considers contextual factors affecting the mind of the ordinary reasonable reader. Citing British Chiropractic Association v Singh [2011], the judgment also makes clear that the court will avoid a formulaic approach when deciding if a statement is fact or opinion.


Moreover, the case has prompted press freedom organisations to call on the UK government to examine how foreign billionaires are using libel courts, to partake in so-called ‘libel tourism’. Following the ruling, nineteen organisations, such as the National Union of Journalists, Index on Censorship and Reporters Without Borders, have voiced concern about the proceedings, which they say ‘amount to strategic lawsuits against public participation’, also known as SLAPPs.


Only a few days later freedom of speech campaigners on 23 November 2021 have further illustrated this growing appetite to update UK and European law for SLAPP cases. The campaigners have set out proposals covering judicial guidance, civil procedure reform and primary legislation, in the hope that their initiatives will make it unacceptable for lawyers to conduct SLAPP actions.


Please click here to read our article visiting these proposed SLAPP reforms in more detail.

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