Resisting lawfare: my speech to the Festival of Resistance
You may be aware that This Writer spent last weekend (October 16-17) at the Festival of Resistance in Nottingham, where I had been asked to speak on a subject I know a little about: ‘Resisting Lawfare’.
Lawfare, as defined on the festival programme, is the misuse of our legal systems and principles, to damage reputations and delegitimise influential figures – for political purposes.
In the UK, for example, it is being used to attack left-wing and centre-left voices like This Writer’s, especially those that question the claims of anti-Semitism that have arisen against major political figures over the last five or six years.
Those who are targeted have to waste years, and spend fortunes, defending themselves.
The workshop, which I helped run on both days of the festival to great acclaim, aimed to explain the background to this David and Goliath struggle, and how to mount a counter-attack.
I left the background to my co-presenter, Ammar Kazmi, and will not presume to paraphrase him here. My mission was to explain how ordinary people like myself can fight lawfare and – hopefully – win.
I never gave my speech as I had written it. Time restrictions and a desire to adapt to the questions of attendees changed the structure of what I said (although not the meaning).
This is therefore the first time it has seen daylight as I initially intended it. I feel I should apologise to those of you who could not attend the workshops, as what follows is a pale imitation of what happened there.
Things to do when faced with lawfare:
First of all: NOTHING.
The most important thing to do when a solicitor’s letter lands on the mat is to NOT REACT IMMEDIATELY. The hasty stroke often goes awry. Before responding in any way, it is best to consider the situation in the round.
Does the other side have a case or are these people trying to bully you because they think they can, or in order to score a point in a political argument, or for some other reason?
(We’ll assume they DON’T have a case, for the purposes of this talk. We underdogs are always going to be on the side of right. Right?)
This is the more important question: Are you able to fight them in the courts, if it comes to that?
To answer this question affirmatively, you need to have access to three qualities. It isn’t necessary for you to possess any of them yourself, and I’ll explain the reasons for that in a moment.
I have defined these qualities as three S’s: Strength, Skill and Stamina.
(I did consider calling them Strength, Endurance and Expertise but the acronym for that would have been SEX. That would have led to some awkward lines, like: “Ask yourself: do you have SEX?”)
STRENGTH is obvious: do you have the will to go into a legal battle with your opponent – the strength OF CHARACTER to see it through?
It turns out that many people think they don’t. I have seen people with huge public profiles, who you might think were pillars of – yes – strength, wilt like flowers in the autumn when faced with a sternly-worded (and therefore probably misleading) letter from a lawyer.
I think these people underestimate themselves. Did they think they were right to do whatever the other side is complaining about? Do they still think so? Then they probably were!
Part of the problem here might be that they have been ‘softened up’ on the social media: I attracted attention because I wrote an article about… a certain television personality. The immediate response to it was that I was dogpiled by people who were either her Twitter followers or who claimed to support her and what she was doing.
Dogpiling – according to the Urban Dictionary – happens when a person says something that others consider to be wrong or offensive, and a large number of people comment in response to tell the person how wrong and/or horrible they are, and continue to disparage the original commenter beyond any reasonable time limit.
The aim is to join in with an angry group to yell at an easy target, or to get popularity points for being seen to agree with the group. They see that everyone else is doing something, and they copy it. The original commenter typically does not respond at all, because they are completely overwhelmed or scared off. Once a dogpile has been established, an apology from the original commenter is less likely to be effective.
Dogpiling doesn’t really work on me because I don’t often accept the assertion that I’m wrong. I also tend to take the time to answer every single dogpiling message – and the dogpilers tend to disappear when they’re faced with reason.
But this leads me to another consequence of dogpiling – the possibility of saying things that may be used against you – for example, in court. Is it intentional? To lure you into providing evidence that can be used in litigation? Whether it is or not, the result can be the same. And any material the other side picks up this way can be used to intimidate a potential defendant.
But! Any fears generated this way are likely to arise from a feeling of ignorance about the process that the other side is threatening to thrust them into – and that leads me to the next quality you need.
You need SKILL. In other words, you need to get lawyered-up. When I was threatened with litigation, I had never spoken to a solicitor in my life. I had no ideas about who to employ or how to find them.
Fortunately, I live in a time when we are blessed with the Internet. I looked one up! Libel litigation is a highly specialised field, so if you open up your favourite search engine and try to find libel lawyers in your area, you might have to widen the radius of that area quite a way before you find one.
You need to be able to reassure yourself that they can do the job, so check their online resumes for evidence of previous successes that may be similar to your case, or of the skills (there’s that word again) that you need.
If lawfare is becoming a major issue, then it might be worth someone compiling a database of solicitors with the necessary abilities…
I found a solicitor based in the Midlands – a fair few miles from my home in Mid Wales, but of course distance is meaningless when you have email and video meetings.
Finally, you’ll need STAMINA – a lot of it. I don’t just mean the ability within yourself to endure a long slog, either (which is a different quality from strength, I promise you!) – this also refers to the financial wherewithal to see you through.
I am as poor as a church mouse!
I gave up my career as a local daily newspaper reporter to become a carer for my disabled girlfriend – you may know her as Mrs Mike – because it offered me more financial security at the time (and that’s a bitter indictment against employment practices in modern Britain, isn’t it?).
I started Vox Political on the urging of a friend who thought I would be a good blogger. It seems his instincts were right because it has achieved quite a lot. I made it a commercial enterprise in 2014 and since then it has brought in a fair bit of pocket money. But I only made enough to sign off Carers Allowance in one year – and that was the year before Covid-19 hit, and brought all our incomes crashing down.
I knew I couldn’t win a lawsuit on my own meagre funds, so – after an initial discussion with my new solicitor, to make sure that I did indeed have a defensible case – I set about arranging some CROWDFUNDING.
I know that Chris Williamson has launched the Left Legal Fighting Fund, which doesn’t get nearly enough publicity, but this was not available to me in early 2019 because it hadn’t happened yet.
So I went to CrowdJustice. It’s not a perfect situation because the site takes a percentage of everything I raise, but it is staffed by lawyers who are entirely capable of defending you – and their site – against threats from opposing litigants.
I had tried fundraising with another site previously, but this was stopped when a (let’s call them a) malefactor threatened the site operators. The same thing has been attempted with CrowdJustice, but the nasties were sent away under no uncertain terms!
But starting a crowdfunding operation is not the same as having cash rolling in, so the next part is vital: PUBLICITY.
If nobody knows what’s happening to you, they aren’t going to help. That much is obvious, right?
What may not be obvious to victims of malicious litigation such as lawfare is that there are good people out in the world who are entirely able and willing to support a good cause – if they only know about it!
I was fortunate with my crowdfund, in that I had Vox Political – and all the social media networks through which I publicise that site’s posts – available to me to seek support for my crowdfund. I have thought very carefully about whether I would have fared as well without that infrastructure.
My conclusion was that it is entirely possible to raise a significant amount of cash, using the power of the Internet and other forms of networking. Almost all of us have a Facebook account, or Twitter, or one of the other forms of social media. We can – and do – use those to talk about our lives’ events, every day. This is no different from that.
You can publicise your struggle with the local (or even national) press, just by emailing them. Reporters are always keen on a good human interest story, and if it’s about a “David and Goliath” struggle it could be pure gold to them.
It is not a short-term prospect.
As I say, I started my CrowdJustice campaign around two and a half years ago. In order to keep it in the public eye, I’ve had to publish more than 100 updates during that time.
It is vital to keep the public informed.
It can also be extremely tiring.
There will be developments in the case, and you will need to inform your funders of those as a matter of duty – good or bad; they are paying for your defence so you must tell them what is happening.
There will also be times when nothing happens for weeks on end. You will still need to publish regular updates or your funders will think your case has petered out and drift away. It can be challenging to come up with something to write at such times.
But it is possible. All you have to do is be aware of what’s going on around you. For example, other events in the news might be relevant to your case – or you could comment on them as a way of drawing attention to your crowdfund.
There’s another aspect of having a crowdfund, and of publicising your case on the social media, that may be overlooked: The support you’ll get from the public.
This cannot be overstated or underestimated.
I was in a pretty low place when I launched my CrowdJustice fund. I knew I was a fairly low-profile political commentator and feared that nobody would bother too much if I sank into a mire of legal debts, even if I did not deserve to be saddled with them.
And I hit my initial funding target within a single day. How wrong can a person be?
The comments I received were a joy to read – and still are. These were people who had become aware of the lawfare being waged against people like myself and were absolutely opposed to it, so they saw their contribution to be doing what they could to fight injustice.
They have buoyed me up during the hard times, and given me the resolve to keep going, even when all seemed lost.
And there have been a few such moments – because the other side, in cases like mine, is likely to use all the legal trickery available to its lawyers’ imaginations and experience.
My own belief is that my case has been artificially lengthened to an exorbitant degree with repeated, costly, applications to the court by the other side. The aim – it seems to me – has been to drain off any funds I have gained and put me in a position where I cannot afford to pay my own legal team. I am still in danger of that today.
There have been arguments over the meaning of the words my opponent was complaining about.
There was a “shifting sands” application in which it was claimed that I had changed the meaning of my article because the author of two pieces it referenced had taken them down. I’m still not sure why I was to blame. I simply asked him to put them back up and that was the end of that.
There was an application to strike out my defences, that nearly finished me off. It seems to me that neither set of lawyers, nor the High Court itself, had a clear idea of the rules for such an application. In the end, it seemed that the judge wanted to see every scrap of evidence and hold a mini-trial – in contradiction of logic – and then struck out my defences – all of them – because I had not put it all before her.
Fortunately my funders leapt to my aid and I was able to raise enough to take the case to the Court of Appeal and have the decision reversed – for one of my defences.
There may be other such battles still to be fought.
The reason for these sideshows seems clear to me: the last thing my opponent wants is for the case to go to trial. I am in a bizarre situation where, after having a lawsuit thrust upon me, I am dragging my opponent into court.
My impression is that the other side is terrified of having the details of the case discussed in great detail – in full view of the public – because it is likely to make them look, well, very bad indeed.
I think they expected me to be like some of the others I mentioned earlier – to wither like a flower in the autumn – allowing them to take my money, publicise their victory in the most prejudicial terms, and put me out of business. That has not happened – and some might say that that is a very good reason for me – or anybody – to fight.
In summary:
1. Don’t react without thinking. Think carefully about what has happened. What are they really claiming? How can you defend against it?
2. Ask yourself whether you have the strength and stamina to fight the claim.
3. Seek legal advice.
4. Crowdfund.
5. Be prepared to have to deal with multiple ‘sideshow’ court applications by the other side.
6. Report everything to your crowdfunders because it will bring in more donations.
7. KEEP GOING.
My case is still under way. If you don’t know about it, you can find many details here. The CrowdJustice site provides a chronicle of the way the case has developed, and shows how it has changed in response to decisions from the High Court and the Court of Appeal in London.
If, after reading all this, you are encouraged to contribute – in the spirit of fighting against the manipulation of our legal system for political purposes, please follow the following instructions:
Consider making a donation yourself, via the CrowdJustice page.
Email your friends, asking them to pledge to the CrowdJustice site.
Post a link to Facebook, asking readers to pledge.
On Twitter, tweet in support, quoting the address of the appeal.
Lawfare is a clear and present threat to free speech in the UK and elsewhere – principally because it relies on the ability of the privileged and powerful to secure legal decisions in their favour because they have money; the details of their cases are often unsupportable.
I hope to be able to demonstrate this when my case comes to trial, hopefully next year.
Have YOU donated to my crowdfunding appeal, raising funds to fight false libel claims by TV celebrities who should know better? These court cases cost a lot of money so every penny will help ensure that wealth doesn’t beat justice.
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