New Zealand Capital Letter editor Geoff Adlam has written about the David v. Goliath Lawsuit against LawFuel pubisher John Bowie, in New Zealand, from a Russian billionaire, which has engendered strong interest among media groups in four countries. The Capital Letter article is reproduced here.
Geoff Adlam – A short High Court decision in December allowing forensic examination of computers and data belonging to John Bowie of the LawFuel legal website is the latest development in a battle which is seen by local and foreign press freedom organisations as attacking journalistic privilege to silence criticism.
Bowie’s opponent is California-based Russian Sergey Grishin (pictured, left). Grishin hit the news in 2020 by selling a California mansion to Meghan Markle and Prince Harry. The fact that he was a Russian billionaire, claims he had made about the Russian banking system and his involvement in an acrimonious divorce made this perfect media fodder.
LawFuel was set up 20 years ago by Bowie, a former lawyer. It was one of the first online law news aggregators and Bowie has been a prominent legal commentator in New Zealand.
Between April and August 2020 the LawFuel site published a number of articles about Grishin and his ex-wife. Bowie had taken the articles down by 9 November 2020 but that didn’t stop Grishin from taking legal action through New Zealand lawyers Simpson Grierson.
As outlined by the High Court in May 2021, “essentially [Grishin] contends [Bowie] has published 10 articles about and concerning [Grishin] which he says are seriously defamatory. The sting in these articles is said to be that [Grishin] is an evil Russian Oligarch, akin to the criminal mobster portrayed in the ‘Scarface’ movie”. (at ).
Bowie says he was extremely surprised by Grishin’s reaction, particularly as the articles published material which had been in the public domain for two years or more before publication.
Grishin started proceedings by applying for pre-commencement discovery against Bowie, as proposed defendant. Simpson Grierson instructed its former partner and renowned defamation expert William Akel. Current partner and a defamation expert Jania Baigent is also involved. Bowie, who has an LLM from Victoria University, is representing himself.
After naming the articles and his belief they were defamatory, Grishin stated he believed Bowie was also acting on behalf of others “not yet known to the plaintiff” and that he had been paid or rewarded for this. He said it was impossible to properly formulate his claim without knowing the identity of all those involved in the publication.
In GRISHIN v BOWIE  NZHC 1204 (27/5/21) per Gendall J, the HC concluded that the interests of justice favoured the making of the pre-commencement discovery orders. It focused on the clear public interest in ensuring that parties to civil litigation have sufficient information to enable them to fairly advance their position “and thus to provide a level playing field for litigation in the courtroom”.
Bowie was ordered to make the documents available for inspection by 9 July 2021.
Impact of decision
Scarcely noticed by the legal profession or mainstream media, the decision caused most ripples among organisations devoted to press freedom. In New Zealand the National Press Club was most outspoken and made a submission to the Law Commission in August 2021.
The NPC expressed its alarm, along with allied organisations the Overseas Press Club of America, the Committee to Protect Journalists, and the Alliance for Journalists’ Freedom. It said this was because the case indicated that international stories covered in New Zealand could be suppressed through an action brought about by an absentee plaintiff and that a court here could order the handing over of documents revealing sources and their information.
“Should New Zealand be perceived internationally as a door of entry to successful litigation in this sphere then we suggest that rules embodying discovery and disclosure in a case such as this one be reviewed in order to protect third parties,” it said.
Overseas, the London-based Media Defence organisation – which provides legal support to people under threat for their reporting – was also concerned.
“This decision sets a dangerous precedent for protection of sources and journalistic privilege in New Zealand. It will inevitably have a chilling effect on journalists there covering this story and other stories,” it said.
Bowie is a NPC member. Chair Peter Isaac says the case has all the characteristics of a SLAPP – Strategic Lawsuit Against Public Participation.
“The effectiveness of the SLAPP genre is evident in the silence about it in both legal and mainstream media,” he says.
With the local media possibly more excited about Covid-19, the story got little attention in New Zealand apart from one Stuff article. A failed attempt by Bowie to reserve what are probably substantial costs (GRISHIN v BOWIE  NZHC 2524 (24/9/21) per Gendall J) also prompted a firm statement by the High Court of the issues at stake. It disagreed with Bowie that there were important arguments about confidentiality of sources and issues of media freedom and privacy.
“This is not the case here,” said Gendall J. “Mr Grishin’s application before me was simply one determining who was involved in a chain of publication of the articles in issue which were said to defame Mr Grishin. This included identifying who went under assumed names of ‘LawFuel Editors’ and ‘LA Correspondent’. As I see it, this had nothing to do with protection of sources as commonly understood.”
Claiming that Bowie had failed to comply with the discovery orders, Grishin’s lawyers got more specific and filed an inspection application requiring Bowie to provide his computers and any other data repositories for examination at Simpson Grierson’s Wellington offices by a forensic technology expert.
In GRISHIN v BOWIE  NZHC 3348 (8/12/2021) per Gendall J, the HC has agreed. It has appointed Campbell McKenzie of Incident Response Solutions as the forensic technology expert and required Bowie to make his computers and data repositories available for examination within 10 working days. Bowie can redact any part of a document where privilege is claimed. Grishin will bear the costs incurred by McKenzie.
Gendall J found it necessary to make everyone who was or may have been involved in the publication of alleged defamatory articles about Grishin to be the subject of disclosure. He noted that privilege matters could be addressed by Bowie’s ability to redact any part of a document to which he claims privilege.
It is understood that the computer examination began at the end of 2021.
Bowie tells Capital Letter that major media outlets continue to have the content online “but under pressure from one of New Zealand’s largest law firms I have been subjected to literally weeks of time attempting to first protect a woman from any consequences of her whistle-blowing and second to defend media freedom”.
He says he was surprised to receive two costs orders against him when attempting to protect the identity of the author.
“The issue has consumed considerable money and huge amounts of time.”