Spiked stories revealed under parliamentary privilege

The spike haunts journalism. For every journalist in the country, legal threats are a persistent concern that can kill stories dead. Stories that are never published leave no imprint on society around them; while the journalist and their editors know of their existence, their readers and society at large are oblivious. We may know that stories are spiked but their true nature, what has been expunged from the public record, is unknown. 

But the Bureau of Investigative Journalism (TBIJ) attempted to change that, to give shape to the stories that have been forced from public attention. On Thursday 21 November, as part of TBIJ’s Silenced Stories project, MPs, protected by parliamentary privilege, presented stories that had been spiked due to legal threats. They came from outlets from across the country, big and small, covering a wide range of topics that the public have a right to know – everything from housing and government contracting to global corruption networks. These are not limited to the big media houses alone. For every national paper that is silenced, a local, independent or community outlet is similarly threatened. While each outlet is different, silence is what they all have in common.

This was an unprecedented view into an erased public record but it only hints at a larger problem. Abusive legal threats are not directed at journalists alone. Anyone who speaks out may be forced into a similar act of erasure – whether on a blog, local Facebook group or online reviewing platform – required to weigh up their desire to speak out against the cost and stress of fighting off legal letters and preparing for court. 

Being a target of a strategic lawsuit against public participation (SLAPP) brings with it a cavalcade of emotional, psychological and financial strain. Malachi O’Doherty was sued by the MLA for North Belfast Gerry Kelly and while he was successful in court, the experience left him scarred, “I didn’t get a penny from him, just a lot of sleepless nights and tinnitus.” Paul Radu of OCCRP, who was sued in London by an Azerbaijani MP put it more bluntly: “Even if you win, you lose.” The toll exacted by defending a SLAPP was documented by the European Court of Human Rights in Strasbourg during the well-known McLibel case, where the fast-food goliath McDonalds sued two activists over the content of a campaigning leaflet. Forced to defend themselves due to the lack of financial resources, Helen Steel and David Morris took on a company, whose financial reserves dwarfed many countries. The impact of this inequality on Morris’ and Steel’s defence was noted in the court’s judgement: “All they could hope to do was keep going: on several occasions during the trial they had to seek adjournments because of physical exhaustion.”

But the impact of SLAPPs reaches well beyond the person in the crosshairs. The ripple effect of censored speech runs far and deep. Readers cannot know what was spiked and those who could act on the information are robbed of the opportunity to make a difference. If the victims and journalists who helped expose the shameful Post Office scandal had been threatened or sued into silence – there were attempts, I might add – we would never have known about one of the largest abuses of justice the UK has ever seen. There would have been no ITV drama, no inquiry and no possibility of remedy for those people so cruelly targeted by this “British institution”. When justice is not forthcoming for those who have been sexually assaulted, warning others through online testimony is one of the few avenues open to survivors. Even as successive governments have committed to support survivors of gender-based and domestic violence, how many have been threatened into silence after their abuser turned to the courts to extend their abuse?

Democracies only function when there is enough information in the public domain to sustain an informed electorate. SLAPPs remove it from the public sphere or even prevent it entering in the first instance. How can democracy function without the information needed for everyone to make an informed decision? 

The new Labour government – while giving lip service to the importance of stamping out SLAPPs – has done little to realise this goal. They are pushing for greater transparency in public life through enhanced reporting, updates to the Ministerial Code, and changes to government contract awards. These should all be welcomed but will only bring about a partial shift in transparency and accountability. Transparency is not for the public sector alone – private actors can seek to shroud themselves in opacity by threatening legal actions. The goal is simple: if their actions are shielded from view how can they be held to account? Public watchdogs – be they journalists, academics, whistleblowers, Facebook groups or local campaigners – fulfil a vital function in this regard but are the most vulnerable to abuse. Without legislative action, every time they attempt to bring something into the light, they risk their financial security and ability to continue their work free from the harassment and abuse that comes with SLAPP threats or actions. 

The debate yesterday was striking in the consensus that emerged across the house. MPs from six parties across the political spectrum spoke powerfully about the curdling impact of legal threats on the public record and our fundamental rights, including the Green Party’s Siân Berry (pictured). They were united in calling for action but the government’s support for an anti-SLAPP law, evidenced by their backing of Wayne David’s Private Members’ Bill before the election, has seemingly evaporated. Heidi Alexander MP, speaking on behalf of the government, stated that “we do not currently intend to legislate in this parliamentary session but we are continuing our work to consider how best to tackle wider abuses of the system in the longer term.” Without the necessary urgency, we have no idea what to expect from the government. This is why the UK Anti-SLAPP Coalition has launched a petition, allowing the public to stand up for free expression.  

Yesterday, many of the gaps in the public record were exposed, but for every story shielded by parliamentary privilege too many remain on the spike. Only when the public can access the information they need to make an informed decision can we ensure democracy is protected.  

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