How Wealthy Men Use The Law to Silence Those That Accuse Them of Abuse
We had a really insightful and thought-provoking event on 21st January 2019 looking at how defamation laws are being used against female survivors of abuse. A big thank you to all our speakers: Harriet Wistrich, Helena Kennedy QC, Keina Yoshida, Caoilfhionn Gallagher QC, Tamsin Allen, Pragna Patel, Afsana Lachaux, David De Freitas and Nicola Stocker. An equally large thank you to everyone who attended and donated.
There was a lot of information given out by the panel so we have tried to collate as much of that as possible below alongside some of the talks given on the night…
The Women and Equalities Committee launch inquiry into Non-Disclosure Agreements to examine wider issues: The deadline has been extended. You can still submit a written response here
Sign the petition demanding law is reformed to stop employers using Non-Disclosure Agreements to silence victims of sexual harrassment here
The group of young women (Soldarity Not Silence) that Tamsin Allen spoke about have a crowdfunding page here. You can also buy t-shirts and bags to support their case fund or follow them on twitter @solnotsilence
David De Freitas
For legal reasons, David was only able to deliver a pre-approved statement:
‘'Much though I would like to say many things, I am unable to discuss my thoughts on my case as it is still ongoing (with an application for permission to Appeal currently before the Supreme Court) and that in those circumstances my lawyers have strongly advised me not to discuss it. I can only refer you to the publicly available court transcripts which any member of the public can then view for themselves. These judgments, which, so far, have made out and upheld my Public Interest defence can be found at:
I hope this statement on its own demonstrates the power and effect of an ongoing libel action on freedom of speech in a powerful manner all by itself.'
“Roughly two weeks ago, SBS had reason to celebrate. We had worked with The Times newspaper to uncover the state’s abusive practice of charging victims of forced marriage when rescued from abroad and, even before we got the campaign going, the government announced its intention to do away with the fees altogether. The widespread media coverage that we received which helped us secure what was the shortest successful campaign in SBS’ history: it had taken exactly one week to change government policy.
It demonstrated how the power of good, investigative journalism when combined with activism can be a powerful tool for change. I don’t need to convince anyone here that access to the media is critical for feminist struggles given that women occupy a deeply uneven playing field and are not the holders of power in society.
Freedom of the press is not just a matter of freedom of speech but also of gender justice. Libel law is not just about media law. It is also a feminist issue.
This was brought home to us when we sought to intervenealong with the CWJ and The Nia Project in the libel case of Lachaux v Independent News Print Limited and Another) which was heard at the Supreme Court on 13 November 2018. We do not yet know the outcome of this significant case.
We have been supporting Afsana for about three years in relation to a number of simultaneous legal cases that her highly abusive and manipulative husband, Bruno Lauchuax, has initiated against her in several jurisdictions around the world. Afsana will presently describe the circumstances of her case and the huge emotional impact and consequences that these have had on her. We sought to intervene in the libel case because her husband had successfully sued the Independent, the Evening Standard and the Huffington Post for covering Afsana’s story of abuse that included a campaign - ‘Bring Louis back home’ - that she had launched to be reunited with her young son who has been kept by Bruno in Dubai. We were refused permission to intervene. The newspapers lost their case at the High Court and their appeal was dismissed by the Court of Appeal. They were, however, granted permission to appeal to the UK Supreme Court.
Our intervention was motivated by the need to ensure that defamation law and the concept of ‘serious harm’ which was at the heart of the case was not approached in a narrow, context free manner. Why? Because yet again, what the case illustrates the way in which (invariably rich) men enjoy the benefit of the full armory of defamation laws, non-disclosure agreements and emergency injunctions that are used to silence women.
In a world where we continue to see high levels of misogyny and systemic institutional failings– not least within the legal system itself – the significance of the media cannot be underestimated.
If we, at SBS, had not been able to harness the media to investigate and report responsibly on crimes of violence against women and inequality, our now 40 year history would have been very different. The media, at its best, has played a key role in helping us to break the silence on violence against women: to challenge community norms, state laws and social policy on a range of issues from battered women who kill to the rise of religious fundamentalism and its propensity to re-invigorate patriarchal structures and radiate violence against women.
This is what the #MeToo and #TimesUp movements have taught us. When vast numbers of women take to the media, including social media, to make public their private accounts of injustice and abuse, it can not only lead to investigation and redress for individuals, but can also encourage other victims to come forward and so contribute to a much needed overthrow of public stereotypes, myths and attitudes surrounding violence against women.
This is not say that women should be given a license to conduct trials by public opinion. It is to say that gender justice is dependent on the public value of enabling women to come forward, rather than simply defending male power and impunity through disbelief and silence. The media presents a key democratic space by which to ensure that long suppressed accounts of domestic and sexual violence and trauma surface and are taken seriously.
I also have to say that the tide is turning. In our experience, the Lauchaux case has had a chilling impact on media coverage of issues such as domestic violence. For instance, we have had immense difficulties in encouraging in-depth media coverage for the case of Seeta Kaur, a 33 year old British Asian mother of four who was killed in highly suspicious circumstances in the home of her husband and in-laws in India. Citing the ongoing Lachaux case, reputable news outlets have been reluctant to cover the case. When the accounts from victim and perpetrators are inevitably in conflict, journalists appear to be too afraid to interrogate the issue – preferring instead to either shelve the story (for want of proof beyond reasonable doubt), or simply present both accounts without any analysis or context of the unequal power dynamics that lie behind stories of domestic and sexual violence.
On one occasion in 2017, we almost had to withdraw from a BBC documentary on domestic violence because of its insistence that the husbands of the (unnamed) women alleging abuse and abandonment be given the right to reply in ways that negated the women’s accounts of abuse and exposed them to risk of reprisals. Such a narrow and timid approach by the media reduces the ability of women to use the media as a vital tool for holding both abusers and institutions to account.
What we are seeing could be a concerted backlash against the #MeToo movement, leading to what has been described as an ‘asphyxiating vortex of litigation’. This is why we seek a robust judicial analysis of the need to protect women’s right to freedom of expression under human rights law. In fact, in some circumstances, protecting even prima facie defamatory statements under the umbrella of freedom of expression has been recognised in the European Court of Human Rights. We say this should apply even more strongly to the particularly egregious forms of harms against women that many of our cases have highlighted.
In being denied permission to intervene in the Lachaux case, like others who have tried to intervene in similar such cases, we have been denied the opportunity to provide a gendered perspective on libel laws. These refusals point to the limitations of the law itself – clearly, we can’t put all our eggs in the legal (or for that matter the media) basket. But equally, we can’t afford to vacate these spaces. “
Stocker v Stocker
On 24th January at the Supreme Court, Nicola Stocker appealed a Court of Appeal judgment upholding the decision of Mr Justice Mitting’s which ruled in favour of her ex-husband, Ronald Stocker’s defamation claim against her.
In a Facebook exchange with her ex-husband’s partner, Nicola posted that Ronald Stocker had previously ‘tried to strangle’ her. Mr Justice Mitting determined during the libel hearing that ‘tried to strangle’ implied an attempt to kill by strangulation. He found that Mr Stocker “did in temper attempt to silence her forcibly by placing one hand on her mouth and the other on her upper neck under her chin to hold her head still”, causing the red marks that were visible to the police officers who arrested him. However, as “his intention was to silence, not to kill” he ruled that her comment incorrectly presented him as a ‘dangerous and thoroughly disreputable man’ and as such it was libellous. He indicated that £5000 damages plus legal costs would be payable. Following an unsuccessful appeal to the Court of Appeal, the legal costs she must pay to date are in excess of £200,000.
In February 2018, Nicola lost her appeal against the ruling, The Rt Hon. Lady Justice Sharp stating that ’the use of dictionaries does not form part of the process of determining the natural and ordinary meaning of words… no harm was done in this case… the judge’s ultimate reasoning, not dependent on dictionaries, was sound’.
David Price QC argued that both Mr Justice Mitting and the Court of Appeal, erred in determining the meaning of the wording.
Harriet Wistrich, director of Centre for Women’s Justice, stated
“This case has chilling implications for women who speak out about male violence. The judgment reveals a shocking ignorance amongst members of the judiciary of the realities of domestic violence. The fact that Mr Stocker was arrested and red marks were observed by the police on the victim’s neck is a serious warning of escalation of violence regardless of whether he had any intent to kill. In fact, strangulation is a warning marker in standardised police risk assessments. We are appalled that a woman speaking out about an accepted incident of domestic violence has been silenced and severely financially penalised.”
Karen Ingala Smith, CEO of nia and co-founder of the Femicide Census said
"We know from the Femicide Census that between 2009 and 2017, 285 women were killed though strangulation, of which 188 women were strangled to death by a current or former partner, that’s an average of one woman strangled to death every two weeks. It is the second most common method used to kill women in the UK.
Accidentally causing death by applying pressure to the vagus nerve in the neck has also been used successfully as a defence against a murder charge. Whether used as a means to kill, frighten and/or control women strangulation is extremely dangerous and abusive. Anything that undermines the seriousness of strangulation, especially when sanctioned in law, is a green-light for men who abuse women. "
The judgement is expected in around two months
The original judgement is available here
Jon Robins from The Justice Gap wrote a fantastic piece about the event and the issues raised