STATUS: Concluded – The case was filed in November 2020, with a jurisdictional hearing in March 2021, the judgment for which was handed down in May 2022. A follow up hearing was anticipated in spring 2023, but the case was settled out of court in January 2023.
Realtid, a Swedish business publication, its editor and two of its journalists were subject to legal action in London for their investigations into the business affairs of the Monaco-based Swedish businessman, Svante Kumlin. Realtid had been investigating Kumlin’s group of companies, Eco Energy World (EEW), ahead of an impending stock market launch in Norway. Although Realtid’s public interest investigation was published in Swedish for a Swedish readership, the case was nevertheless filed in the UK in November 2020.
Swedish freedom of expression campaigners have pointed out that despite the negligibility of Realtid’s readership outside of Sweden, Kumlin chose to pursue claims in foreign jurisdictions but not in Sweden itself. Under Swedish law it is not possible to sue journalists independently of their publication. Two of the journalists, Per Agerman and Annelie Östlund, and the editor-in-chief, Camilla Jonsson, are also being sued personally. Kumlin’s London-based solicitors, TLT, also warned the journalists in the early communication of the potential for criminal defamation proceedings to be pursued in Monaco in what has been seen as exceptionally heavy-handed effort to stop their reporting.
The justification put forward for the libel claim, estimated to be worth more than £13 million, to be heard in the UK is that Kumlin resides in the UK part-time, while his company EEW Energy, listed as a second plaintiff, is registered in London (since 2019). A hearing to decide the jurisdiction admissibility was held on 24th and 25th March 2021, presided over by Justice Julian Knowles. On 11th May 2022, 15 months after the jurisdiction hearing took place, Justice Knowles ruled that the courts of England and Wales do not have jurisdiction over ten of the 13 defamation claims. EEW was precluded from bringing its claim over five different articles on the basis that it did not show that it suffered serious financial loss stemming from Realtid’s publications, is proceeding with the case as an individual on only three of the original eight articles he sued over, but these actions have been restricted to claiming for any harm he suffered in England and Wales. In his judgment Mr Justice Knowles concluded that Kumlin “has failed to displace the general position that his centre of interests is Monaco, where he is habitually resident.”
English courts have appeared to allow libel cases to proceed so long as a foreign claimant can show a reputation in the UK, for example owning a home, business dealing, children in the school in this jurisdiction, or some other personal or business interest will suffice. The bar to meet the criteria to bring a case therefore seems to have become problematically low, not taking into account those with ample funds who cannot only easily set up businesses to purchase businesses in the UK, but also effectively buy residency and eventually citizenship via investment visas. The UK is also home to companies ready to facilitate these services for those rich enough to afford it.
It is worth noting that at the time that case was filed at the High Court against Realtid and its journalists, the UK was still a member of the EU and part to the Lugano Convention, which meant that previously it was more straightforward to bring cases against defendants domiciled in states party to the convention. When the Brexit transition period ended on 31st December 2020, the UK also was no longer subject to the Lugano Convention and as of yet its request to rejoin has not been granted by the EU. This means that moving forward English courts will have to rule on the appropriateness of EU-based claimants bringing action in the UK. This would place a great deal of importance on English Courts to ensure that defamation cases heard in England are there for a legitimate reason and not for the plaintiff to try to take advantage of benefits of the jurisdiction, namely substantial damages and high costs for defendants.
In January 2023, Realtid announced that a settlement had been reached, with Mr Kumlin paying further money towards Realtid’s costs, and the publication publishing an apology alongside the 3 remaining articles that were under claim. Its states: “After the publication of this and other articles about Mr Kumlin, and following the resolution of legal action, Realtid wishes to make clear that the article is not intended to suggest that Mr Kumlin, whether directly or through any of the companies mentioned, has engaged in any wrongful conduct and we are happy to apologise to Mr Kumlin for any personal distress caused to him by our reporting. We are pleased to be able to resolve Mr Kumlin’s complaint by this clarification and apology and save as clarified in this statement concerning Mr Kumlin and his activities, we stand by our reporting of this and related articles and have not made any amendments to their content.”
The result of this settlement means that all of the articles remain online with no changes apart from the addition of the apology. The investigative journalists Agerman and Östlund, in comments made to FPC in January 2023, stated that they remain free now to do more research, publish more articles and to speak about their experiences during the case. They have expressed that a settlement had not been their first choice, considering that so many things had gone their way and with the huge support and backing they received from organisations and individuals. However, they also noted, that had it not been for the support of British NGOs, they would have been forced – two years ago – to remove articles that they still see no reason to amend. They would not have had a chance to defend their investigation. This is a chance that is unfortunately not available to every defendant, and even they cannot reclaim the full financial cost nor the emotional or professional impact the case has had on the last two years of their life. As they themselves have aptly noted, press freedom should not be a question of money.
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