Exiled Russian businessman Boris Berezovsky today won his libel claim against Russian Television and Vladimir Terluk arising out of a claim broadcast on the Russian language channel RTR Planeta that he was responsible for the murder of Alexander Litvinenko. The Guardian’s report of the judgment is here. Mr Justice Eady handed down 178 paragraph reserved judgment ([2010] EWHC 476 (QB).

The Judge points the RTR Planeta channel is available without subscription throughout the United Kingdom and held that the likelihood was that the viewers of the programme in the jurisdiction “will have been measured in the thousands” [2].  After setting out the background relating to Mr Berezovksy, Mr Litivinenko and their relationship, the judge sets out the words complained of in the broadcast which largely consisted of a person identified only as “Pyotr”  [52].

The complaint was that those words meant that

i) the Claimant was a knowing party to a criminal conspiracy to avoid his extradition and obtain political asylum in Britain by procuring a false confession from the so-called Pyotr (first by offering him massive bribes and then, when he refused to comply, by drugging him) that there was an FSB plot to poison the Claimant and hence he would be in mortal danger if returned to Russia; and
ii) the Claimant had been a party to the murder by poisoning of Alexander Litvinenko because the latter had been a witness to the said conspiracy and the procurement of the false confession from Pyotr; alternatively by his conduct the Claimant had given strong cause to suspect that he had been guilty of doing so; and
iii) the Claimant had been a party to threats which made Pyotr fear for his life. [53]

The Claimant contended that “Pyotr” was Mr Terluk and this contention was accepted by the Judge [59].  Mr Terluk advanced a plea of justification – specifically in relation to the first of the “defamatory allegations” above – being, as the Judge put it, “somewhat equivocal” on the second.  On that point the Judge said

I can say unequivocally that there is no evidence before me that Mr Berezovsky had any part in the murder of Mr Litvinenko. Nor, for that matter, do I see any basis for reasonable grounds to suspect him of it. [138]

After considering the evidence of Mr Terluk and the Claimant’s witnesses, the Judge concluded that the first of the defamatory allegations was also false [166].  He also concluded that the third allegation was false. [167].

The Judge then considered the issue of damages and, in particular, the qustion of the effect of the Claimants’ “bad reputation” among Russian speakers in the jurisdiction.  Damages of £150,000 were awarded against the defendants jointly [177].

This case casts some interesting light on the “libel tourism” debate.  Mr Berezovsky is resident in England and was suing in respect of a television broadcast which is available all over the world.  In the Index on Censorship/English PEN report “Free Speech is not for Sale”,  Recommendation 4 is

“No case should be heard in this jurisdiction unless at least 10 per cent of copies of the relevant publication have been circulated here”

Applied to broadcasts on the basis of “at least 10% of viewers” this would mean that Mr Berezovksy would not have been able to bring his claim in England.   He would have been classified as a “libel tourist” and, in the absence of any practical remedy in Russia, he would have been unable to take any action in relation to this seriously defamatory broadcast.  We question whether this is an appropriate policy for the English law of libel.

Update: A reader, Fergus O’Rourke (whose has an interesting blog “Of Laws and Men”) has drawn our attention to an interesting parallel between the Berezovsky case and a 1997 claim made by another Russian, Alex Konanykhin against the daily Russian newspaper Izvestia which had reported him as being involved in various criminal acts.  He claimed that the information was false and published with “reckless disregard for its truth or actual malice.” An Arlington County Circuit Court jury recommended Konanykhin should be awarded US$33.5 million. Soon thereafter the same court awarded Konanykhin an additional US$3 million in a libel case against the Russian financial journal Kommersant.  It appears that England is not the only place where Russian oligarchs can sue foreign language newspapers published abroad.

For a comment on the Berezovsky case by Afua Hirsch, see here