By John Helmer in Moscow
The US has responded with a powerful SOS for reporters, setting in motion a model for similar protections worldwide. SOS stands for Sod Off Schillings.
The new American legislation will make it impossible for practical purposes for Russians to attack American reporting of their activities by suing them or their newspapers in London. Russian businessmen who have made use of the London courts in this fashion include Mikhail Khodorkovsky, Alisher Usmanov, Roman Abramovich, Sergei Frank, Gennady Timchenko, Sergei Generalov, Alexander Lebedev, Nikolai Gluchkov, Boris Berezovsky, and Oleg Deripaska. The London-based law firm of Schillings has made a great deal of money issuing threats to stop publication of investigations of the likes of them.
On August 10, President Barack Obama signed into law the “Securing the Protection of Our Enduring and Established Constitutional Heritage Act”, known for short as the SPEECH Act.
This law puts an end to current threats by the London law firm Schillings against US journalists and media reporting on Oleg Deripaska and his United Company Rusal. Deripaska himself has fought to stay out of the UK courts in cases involving corruption in Tajikistan and the theft of Rusal shares from Deripaska’s former patron and partner, Michael Cherney (Mikhail Chernoy). Trial in the Cherney case has been ordered by the UK High Court and the Court of Appeal.
Press Deripaska’s face, and you can see the new Act being introduced in the US House of Representatives and later signed by Obama:
The Schillings lawyer who has dispatched threat letters to newspaper managements and journalists in the UK, Hong Kong, US, and elsewhere to cover up for Rusal is Rod Christie-Miller. Press the Miller face, and you can read the new law:
In the opening of the statute, Congress has issued its findings that “some persons are obstructing the free expression rights of United States authors and publishers, and in turn chilling the first amendment to the Constitution of the United States interest of the citizenry in receiving information on matters of importance, by seeking out foreign jurisdictions that do not provide the full extent of free-speech protections to authors and publishers that are available in the United States, and suing a United States author or publisher in that foreign jurisdiction. (3) These foreign defamation lawsuits not only suppress the free speech rights of the defendants to the suit, but inhibit other written speech that might otherwise have been written or published but for the fear of a foreign lawsuit.”
The operational part of the law compels anyone who thinks he will win under the UK’s libel rules to litigate all over again the same issues in US courts under US libel laws and the protection of the Free Speech Amendment of the US Constitution. This shifts the burden of proof of error or fault to the plaintiff.
“A domestic court shall not recognize or enforce a foreign judgment for defamation unless the domestic court determines that the exercise of personal jurisdiction by the foreign court comported with the due process requirements that are imposed on domestic courts by the Constitution of the United States.(2) Burden of establishing exercise of jurisdiction.–The party seeking recognition or enforcement of the foreign judgment shall bear the burden of making the showing that the foreign court’s exercise of personal jurisdiction comported with the due process requirements that are imposed on domestic courts by the Constitution of the United States.”
Russian oligarchs have been ruled by American judges to be public figures and open to publication of wide-ranging opinion, comment, jokes, analysis, and conventional reporting. No libel actions have been won by major Russian businessmen in the US courts .
Schillings will still be able to offer clients high-cost court proceedings against reporters and their publishers. But if the targets are US citizens, they can safely ignore the threats, avoid costs in the UK, and skip the court case entirely. For the new Act blocks enforceability of any UK court ruling against a US journalist unless the lawyers and their clients enter the US courts.
Section 4102 also extends the new protection from the traditional media of books, newspapers, radio, and television to the internet, and to “the provider of an interactive computer service.”
Non-American publishing companies may also obtain the protection of the new law, so long as they have a “business entity incorporated in, or with its primary location or place of operation in, the United States.”
SPEECH adds a measure of counter-attack for US reporters and media companies, granting them the right to file first for “a declaration that the foreign judgment is repugnant to the Constitution or laws of the United States.”
Schillings and their clients also run the risk that the US journalist will win the costs of his defence, and tax Schillings to pay the bill: “in any action brought in a domestic court to enforce a foreign judgment for defamation, including any such action removed from State court to Federal court, the domestic court shall, absent exceptional circumstances, allow the party opposing recognition or enforcement of the judgment a reasonable attorney’s fee if such party prevails in the action on a ground specified in section 4102 (a), (b), or (c).”
In January this year, a threat to sue from Christie-Miller, acting for Rusal, persuaded the London Evening Standard (editors Doug Wills and Christopher Blackhurst, owner Alexander Lebedev) to retract what the Moscow police, the Federal Security Service, and western intelligence agencies knew to be the accurate about a Rusal plan of attack against a reporter . Private Eye, also a London publication, published the story without regard for Schillings.
Three months later in Australia, similar lawyer threats were used to persuade  The Australian and other papers not to risk the costs of defending lawsuits initiated by Deripaska.
Members of the Australian Parliament are planning their own new measures to protect Australian reporters.
|It is anticipated that the Australian Department of Foreign Affairs and Trade (DFAT) will insist on its exemption from an Australian version of SPEECH, preventing disclosure and prosecution of acts of murder, assault or attempted attacks on Australian reporters if they are committed by the Indonesian Army, or by Russian businessmen with investments in Australia.|
The attempt of the Australian foreign ministry to protect its right to lie and cover up for murder of Australian journalists has been exposed since the killing of five Australian reporters at Balibo, in East Timor, in 1975 (see image). The Twomey Exemption (TEMPT) is named after Margaret Twomey. She was Australia’s ambassador in East Timor when the investigations into the Balibo coverup were underway. She has been ambassador in Russia during the coverup  for Rusal.