Written evidence submitted by Global Witness
HIGHLIGHTING THREATS TO INVESTIGATING AND
PUBLISHING IN THE PUBLIC INTEREST
1. Global Witness would like to take this
opportunity to express our serious concerns with respect to the
libel and privacy laws in the UK. Given the vital importance of
these issues to our core work, we would also like to request the
opportunity to make an oral submission to the Committee to expand
on these matters.
2. Global Witness is an NGO that exposes the
corrupt exploitation of natural resources and international trade
systems. We obtain evidence which we use to drive campaigns that
end impunity, resource-linked conflict, and human rights and environmental
abuses. Global Witness was co-nominated for the 2003 Nobel Peace
Prize for its work on conflict diamonds.
3. We are working predominantly in developing
countries, emerging markets and in countries with totalitarian
regimes and low levels of transparency (according to the Transparency
International index).
4. Privacy and libel laws already seriously
curb freedom of expression on issues that are in the public interest
including political and corporate corruption, the functioning
of organised crime and the funding of conflict. They threaten
the very existence of many Non-governmental Organisations (NGOs)
that engage in the investigation and reporting of such issues.
5. Global Witness feels that the interaction
between the operation and effect of UK libel and privacy laws,
and investigative reporting by NGOs, must be considered. Libel
law in the UK are already strict and impose considerable challenges
when publishing reports which we take enormous care to ensure
are accurate. These reports often rely on those with first-hand
knowledge but who in-country are exposed to the very real fear
of reprisals. There are already numerous cases where information
that is in the public interest is "self-censored".
6. Cases show that the UK legal system is
already being used by the rich, powerful and influential to attack
publications (aka "libel tourism"), and the UK system
is characterised by disproportionately high costs and damages
which may be affordable by media empires, but not by non-profit
organisations. Standards for freedom of expression have already
fallen below those protected in countries such as the United States.
Furthermore, penalties provided for contravention of libel law
in the UK are already tougher than in other European countries,
as demonstrated by the recent study conducted by Oxford University
"A Comparative Study of Costs in Defamation Proceedings
Across Europe" (December 2008).
7. Global Witness is concerned that the
UK libel law already has an unsettling effect on our investigative
work which seeks to expose the truth in the public interest. The
new trend is for large corporates and wealthy individuals to use
the UK libel law to sue and censor the important reporting from
NGOs. The impact of even more stringent libel law in the UK will
be to silence the truth and endorse the censorship of information.
Legitimate inquiry and reporting of "sensitive" information
will be stifled; accountability through methods of "naming
and shaming" will become more difficult. It is because of
this position that we feel obligated to respond to the Culture,
Media and Sport Committee's call for submissions.
8. Given the dramatic changes in which society
now consumes information from the NGO sector, Global Witness believes
that it is vital for Parliament to understand that there is a
need to make changes to UK libel law that favour the public interest.
Serious investigations require openness, transparency and freedom
of expression; it is essential that the legitimate inquiry and
reporting of sensitive issues, such as corruption and state looting,
be possible. The issues we deal with are complex, long-term, and
often require in-depth analysis, advocacy and follow-up. The public
has a right to know how revenues from natural resources, such
as oil and gas, are being misappropriated by the state or shady
companies, especially when some of these states are beneficiaries
of UK government overseas aid, as highlighted in Case Study 3
below. People who unjustly benefit from the illicit trade in natural
resources must be held accountable in the public eye and legal
language is needed to reflect this.
GLOBAL WITNESS'
CONCERNS RELATING
TO REPERCUSSIONS
OF THE
LIBEL LAW
IN THE
UK
Global Witness would like to highlight the following
specific concerns:
Threat to legitimate inquiry and reporting
9. UK libel law can prevent the publication of
NGO reports on governments, corporations and individuals, especially
where the information is sensitive and carries a high liability
risk.
10. Global Witness often carries out investigations
in dangerous places, where local populations either do not have
access to information regarding natural resource use, or cannot
freely express knowledge of corruption without fear of facing
reprisals. However, based on its truth and value of serving the
public interest, Global Witness publishes this information. To
exemplify the risks described above, in Gabon two anti-corruption
activists, two journalists and one civil servant were arrested
and charged, on 7 January 2009, for activities related to the
dissemination of a document relating to corruption which is freely
available on the Internet. Four of these people were imprisoned
for a week; at the time of writing we understand that they have
been released but the charges against all five remain.
11. Global Witness stands by the content
of its reports and briefings, and has never been successfully
sued. Nonetheless, the increasing cost of defending our work has
proven debilitating and prevents us from carrying out more of
our core work. Unfortunately, accurate reporting of information
does not prevent hostile libel actions from rich business people
and Politically Exposed Persons (PEPs), who can paralyse the activities
of and financially break an NGO before the action ever gets to
court. Where state looting is concerned a "front person"
can be the instrument of the government in trying to pressure
an NGO into withdrawing public information. At other times, a
very broad brush approach has been used to pressure Global Witness.
It is noteworthy that even where we have been awarded court costs
in the UK we have not been able to recover them from foreign claimants.
12. The internet often provides the only
way information published in the public interest can be made available
in certain countries. For example, Global Witness reports are
banned in Cambodia, and hard copies have been seized by the police
and customs. In one instance, the freelance designer of one of
our reports had to flee the country due to threats to his life.
In other countries, including Angola, Zimbabwe and Equatorial
Guinea, it has not been possible to publish or disseminate hard
copies of our reports due to legal and physical threats received
from the authorities.
13. However, publishing on the internet
means that an organisation or individual is subject to the libel
law in any country in which the publication is downloaded. Thus,
any information downloadable in the UK exposes the publishers
and authors to the possibility of civil action under the UK libel
law, even if they are foreign entities reporting on issues with
no relevance to the UK and never intend to publish in the UK.
Serious concerns about conditional fee agreements
14. Global Witness is extremely concerned
about the conditional fee arrangements (CFAs) that have been proposed
as part of changes to the libel law in the UK. We are concerned
that the risk of even higher litigation costs, or even just the
threat of incurring these costs, will make it more difficult to
justify defending claims. Analysis suggests that fees charged
by claimants' lawyers will be higher with CFAs because of a lack
of monitoring by their clients. Research also supports findings
that with CFAs legal fees incurred by the claimant will be higher
than those incurred by the defendant.[10]
The risk is that we face paying double the claimants' costs, over
which we have no control, in the event that the case is lost.
This will make it more difficult for us to play an effective role
as a "public watchdog."
15. Thus Global Witness submits that CFAs create
a financial disincentive to us defending a defamation claim. We
highlight conclusions reached by Oxford University that CFAs are
in contravention of Article 6 (access to justice) and Article
10 (freedom of expression) of the European Court for Human Rights.[11]
16. Furthermore, we feel that large financial
gains should not be the point of libel actions, but rather the
focus should be on correcting any erroneous information or issuing
an apology (if required). We also feel there should be a time-limit
for bringing actions, especially for information posted on the
internet.
Public interest and weakened accountability
17. Historically, Global Witness has published
sensitive material on powerful public figures to ensure greater
knowledge and accountability, even when this has involved us paying
high legal costs. In this sense, we have played an important role
in providing a voice for disenfranchised people and exposing corruption
and illegal activities to ensure accountability around natural
resource use.
CASE STUDY
1: OIL, OBIANG
AND A
DC BANK
18. Global Witness was passed confidential
information alleging that multinational oil companies were making
payments directly into accounts at Riggs Bank, in Washington DC
that were benefiting the dictatorial President of oil-rich Equatorial
Guinea. Through subsequent investigations by our organisation,
we were able to access public mortgage records showing that President
Obiang bought two multi-million dollar mansions in the United
States with the financing arranged by a senior manager of the
same bank. The resulting press interest helped prompt a US congressional
subcommittee investigation into the issue which showed how President
Obiang was directly accessing and transferring cash from those
accounts.
19. As a result of the investigations and publication
of information, the oil companies involved are being investigated
for possible violations of the US Foreign Corrupt Practices
Act (though they have yet to be charged with any offences)
and the bank in question has had its federal banking licence revoked
for numerous ethics and anti-money laundering violations and was
fined US$24 million for its role in the affair.
CASE STUDY
2: ROSUKRENERGO AND
UKRAINIAN GAS
20. Global Witness gathered detailed information,
from a range of public and non-public sources, on the trade in
natural gas that connects Central Asia, Russia, Ukraine and the
European Union. We were the first to publish this research and,
thus, were able to draw attention to the person who plays a pivotal
but hitherto undisclosed role in this trade. A week after publication,
it emerged that this individual was in fact a major shareholder
in a highly controversial private company which dominates this
trade.
21. The company, and the questions about its
activities, is central to the current dispute between Russia and
Ukraine over the natural gas trade. This dispute, which has recently
led to parts of the European Union (EU) facing energy shortages
in the middle of winter, has become a top political priority for
the EU and our work has shed light, for the benefit of policymakers,
the media and other interested parties, on a crucial aspect of
it.
Abuse of English courts and UK law through "libel
tourism"
22. Global Witness supports calls to end
"libel tourism" which have been vocalised by others
in the NGO community. This practice reflects the willingness of
UK courts to allow wealthy foreigners, who do not live here, to
attack publications that have no connection with Britain. Also,
as discussed in paragraph 13 above, there may be no limits to
protect those who publish. This is an assault on freedom of expression.
23. Despite our policy of "naming and shaming",
Global Witness is proud of the fact that in spite of numerous
threats, no libel claim has been successfully brought against
us. This is due to our own internal procedures that ensure the
information we publish is accurate and in the public interest.
24. However, this does not prevent individuals
and companies from threatening to file legal actions against us.
This is extremely costly—both in financial and resource
terms—to an NGO such as ours. The UK courts and UK libel
law are increasingly being used to try and prevent publications
such as ours from entering the public domain. This is a serious
threat which Global Witness faces every time it publishes.
Global Witness' concerns relating to privacy based
legal actions
25. Global Witness is very concerned about
the precedent that recent cases (eg the Max Mosley case) may set
in considering the right to privacy over freedom of expression.
In response to this, we restate the importance of adequately assessing
the true interests at stake, parties involved and severity of
the allegations at hand. The balance is at risk of being lost
once again. Whilst everyone has the right to privacy, this right
should not be taken to the extent that it makes it impossible
for NGOs to highlight and expose bad practice, corruption and
illegal behaviour: subjects that are in the public interest.
CASE STUDY
3: CONGO-B, CORRUPTION
AND THE
UK COURTS
26. Global Witness obtained documents that
had entered the public domain through a court in Hong Kong. We
published bank and corporate documents showing that Denis Christel
Sassou-Nguesso, the son of President of Congo-Brazzaville, had
spent hundreds of thousands of dollars on luxury goods and other
items using a credit card being paid out of funds appearing to
have come from sales of oil by the government. As well as being
son of the country's president, Denis Christel Sassou-Nguesso
was the Director of Cotrade, the marketing arm of the state oil
company and as such was the public official in charge of these
oil sales.
27. After publication by Global Witness, Sassou-Nguesso
and his company, Long Beach Limited, sought a High Court injunction
to force Global Witness to remove his company records and credit
card statements from its website. Judge Stanley Burnton dismissed
this case and found that: "Once there is good reason to
doubt the propriety of the financial affairs of a public official,
there is a public interest in those affairs being open to public
scrutiny." He said the documents "unless explained,
frankly suggest" that Mr. Sassou-Nguesso and his company
were "unsavoury and corrupt" and concluded that
"the profits of Cotrade's oil sales should go to the people
of the Congo, not to those who rule it or their families.
"
28. Global Witness believed that the publication
of these documents was in the public interest and also a matter
of international concern as shown by the fact that they were referenced
in the US Congress, given that the actions appear to contradict
solemn commitments the Congolese government made to the international
community in an effort to benefit from significant debt relief.
The UK judge clearly agreed that publication was in the public
interest.
29. Regardless of the UK judge's ruling
in favour of Global Witness' right to publish this information
in that case, and the awarding of costs to us, the practical implication
is that we incurred £50,000 in legal costs that have not
been recovered as the applicant has not paid them. It is worth
noting that these costs accrued over just six working days, between
6-13 July 2007, the time that elapsed between the original serving
of a court order and the end of the Court hearings themselves.
Had Global Witness lost the case we would have incurred costs
of around £100,000 which, for a non-profit organisation,
could be crippling.
30. Furthermore, the applicant's solicitors,
Schillings, engaged in behaviour they later conceded in court
was inappropriate, including unfounded threats of possible prison
sentences for Global Witness' Directors, made via our auditors
to whom they tried to serve an Order from a Hong Kong court. The
Schillings solicitor concerned, Jenny Campbell Afia, said in her
First Witness Statement to the London Court:
"I explained that the document I wished
to serve was an order from a Hong Kong Court and that if the Respondent
failed to comply with it, it would potentially be in contempt
of court and could have its assets sequestered and/or its directors
could be fined or imprisoned (I believed this was true at the
time although having now reviewed the Hong Kong Order I note that
it does not provide for the Respondent's directors to be fined
or imprisoned if the Respondent fails to comply with the terms
of the order)."[12]
31. Global Witness suggests that these tactics
are entirely consistent with a system that seeks to suppress free
speech through punitive levels of costs and damages. We do not
know whether Schillings always employs such tactics, or whether
their threats were indeed the result of a mistake as Jenny Afia
claims, but given that Schillings claims on its stationery to
be "The leading law firm protecting the reputations of
high profile individuals, corporates and brands" it seems
a very serious mistake to make and was, of course, received as
a seriously intimidatory threat.
32. If privacy laws were changed to insist
on contacting the individual or company before publication, the
negative effects could be horrendous. To exemplify this, we have
provided two examples of incidents where had we contacted those
named in the reports prior to publication, the outcome could have
been very serious:
CASE STUDY
4: TAYLOR, TIMBER
AND UN SANCTIONS
33. Former Liberian president Charles Taylor
funded his own regime, personal lifestyle and the brutal wars
in Liberia and Sierra Leone with revenues from the diamond and
timber industries. In particular he funded Sierra Leone's Revolutionary
United Front (RUF), notorious for the mass amputation of limbs
of the civilian population, with these revenues. Working with
Liberian counterparts who infiltrated the Liberian timber industry
Global Witness obtained critical information documenting this
industry in detail, the resultant corruption, state looting and
the timber for arms trade. This information was published in order
to persuade the United Nations Security Council (UNSC) that they
should impose sanctions on Liberian timber, which they did in
May 2003. Within two months Taylor fled into exile and is now
on trial at the Special Court for Sierra Leone in The Hague charged
with war crimes. Global Witness' reports have been presented as
evidence at the trial. If this information had not been made public
the UNSC timber sanctions may not have been imposed at all, or
certainly not as soon as they were, which would have prolonged
the wars with increased loss of life, forced displacement and
general destruction. Had we been forced to contact individuals
named in our reports prior to publication we would have jeopardised
the lives of our sources and driven the corruption even further
underground. We would also have run the risk of an injunction
in the UK courts with the intent to slow down and/or prevent publication
at a high cost to Global Witness.
CASE STUDY
5: CAMBODIA, CORRUPTION
AND CONSERVATION
34. We gathered information on the role
of Cambodia's military in widespread illegal logging and extortion
in a wildlife sanctuary where international donors (eg UN and
EC) and international NGOs were spending large sums on ambitious
conservation programmes. Through undercover investigations, open
field research and aerial surveys, we assembled an extremely detailed
picture of which units and which individual commanders were involved,
their activities and how much money was changing hands. It was,
at the time, the most in-depth investigation Global Witness had
ever done on corruption in Cambodia's forest sector and arguably
one of the most dangerous for the (Cambodian) Global Witness staff
involved.
35. We published this as the "Taking a Cut"
report in November 2004. The same month, at the annual meeting
between the Cambodian government and international donors, the
latter insisted that the government accept key recommendations
from our report (notably on information disclosure) as performance
benchmarks for the following year. While the Cambodian government
stalled on their implementation, these recommendations set the
terms of the debate for natural resource management in Cambodia
for the next two to three years.
36. At the time that we published the report,
Global Witness had an office and five staff based in Phnom Penh.
We felt that if we gave advance notice of our intentions to publish
to those named in the report, they would attempt to stop the publication
and threaten our staff. We believed that, once the report was
published and those named came under public scrutiny, it would
be more difficult for them to retaliate. As it was, the Cambodian
government banned the report, seized copies and launched an investigation
into Global Witness' activities in Cambodia. Eight months after
we published the report they banned Global Witness expatriate
staff from entering Cambodia and all of our local staff began
receiving threats or warnings about their personal security. When
the situation did not improve, we decided to close the office.
37. Global Witness believes that ill thought
out application of the UK libel and privacy laws could have a
seriously negative effect on civil society's ability to investigate
and prosecute a large variety of crimes. We hope that the Committee
will carefully consider the implications on uncovering the truth
and seeking accountability in pursuit of the public interest.
January 2009
10 See: Study completed by Oxford University, December
2008. Back
11
Ibid: page 5 Back
12
First Witness Statement of Jenny Campbell Afia in the matter of
a proposed action in the High Court of Justice, Queens Bench Division;
(1) Long Beach Limited (2) Denis Christel Sassou Nguesso, Applicants,
and Global Witness Limited, Respondent. Back
| 
