Global Witness - Breaking the links between natural resources, conflict and corruption

• Libel Tourism
• The Sassou Nguesso case

THE THREATS TO PUBLIC INTEREST AND FREEDOM OF SPEECH

Global Witness' stock in trade is to investigate and expose the activities of some of the world's most unsavoury people, whether they be corrupt politicians and businessmen, organised crime networks or warlords. Our staff have been arrested on trumped up charges, death threats have been made, and in Cambodia we even had a price put on our heads. Our colleagues from civil society in the areas in which we work face the same threats, but they have to live with them, whereas we can at least leave the country.

However, the most common threat we face, together with many civil society organisations including the media, is legal action. The easiest recourse for those with a name to defend, and a large bank balance at their disposal, is to bring a libel action against us, or to bring an injunction against our activities. In countries like Cambodia or the Republic of Congo, corrupt governments can manipulate a corrupt judiciary to bring charges that can range from ‘criminal defamation' (which in Cambodia can carry a jail term), to fraud. Either way, local and often impoverished CSO's are forced to fight for their very existence and freedom, which diverts them from the tasks they should be working on. The same is true for Global Witness in London.

In July 2007 for example, the son of the President of the Republic of Congo, Denis Christel Sassou Nguesso, sought an injunction to force us to remove certain documents from our website, which showed that he may have been using state oil revenues to fund his lavish personal lifestyle. In legal terms an injunction is a powerful instrument, but a simple and cheap one compared to a libel action. Nevertheless, this case - which lasted for less than a week - ran up costs totalling over £90,000, of which £55,000 were for our defence team. Had we lost the case, we would have had to bear all of these costs. However, even though we won and were awarded costs, these were the legal ‘standard' of 70% of the total, just £38,500. What this means is that an organisation like ours, acting perfectly legally, suddenly finds itself in court, wins the case, but is £16,500 out of pocket at the end of the process. In fact, at the time of writing, Sassou Nguesso had defied the costs order and had not paid up, so we are shouldering the complete £55,000. On top of this one must include the expense and trouble that is involved in trying to enforce costs orders. This is especially significant when defaulters are based overseas.

Of course, we could have taken the easy route and bowed to the threat, which is what the claimants were probably banking on, and removed the documents from the website. But this is not what we are here for, so we have to take the judgement about whether to fight the case, and risk the costs.

LIBEL TOURISM, REPUTATIONAL LAUNDERING & GAGGING ORDERS

There is an increasing trend that criminals, including ‘Politically Exposed Persons' (PEPs) are individuals whose prominent position in public life gives them opportunities for profiting from corruption[1]), are using the courts to launder their reputations. Regardless of the facts of a case, their wealth and/or power can intimidate both NGOs and media organisations, and can quite easily financially destroy them. Leading law firms in the UK, which has a particularly harsh legal environment in terms of costs and damages for those putting information into the public domain, are actively touting for the business of PEPs and others, thus exacerbating what is already a very difficult environment. Thus many organisations are increasingly engaging in self- censorship, rather than risk fighting a legal action that could threaten their very existence. This is an understandable reaction, but it is a very dangerous situation in a country that values freedom of speech.

This should be viewed in the current legal context. Probably the majority of cases concerning privacy and public interest that reach the UK courts relate to media coverage of the private lives of celebrities, and therefore many judges' experience is based around these issues. NGO exposure of issues that were traditionally in the realms of law enforcement, such as corruption, arms trafficking, money laundering etc, is relatively new, and it is important that the legal system acknowledges that in many of these cases there is significant public interest at stake, and that the ‘chilling effect' of hostile legal action can be damaging in our society.

Of course, anyone who publishes information that concerns the reputation of individuals or companies has a duty to be as responsible and accurate as possible, and they should certainly not be above the law, but the current situation, where accurate reporting can nevertheless be overwhelmed by the expense of defending an action, is unacceptable.

[1] Financial Crime Newsletter, Issue No.7, UK Financial Services Authority http://www.fsa.gov.uk/pubs/newsletters/fc_newsletter7.pdf ; May 2007.

Read more about the Sassou case

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