Graham William Phillips v The Secretary of State for Foreign, Commonwealth and Development Affairs

Hearing dates: 20 and 21 December 2023

Approved Judgment

This judgment was handed down by release to The National Archives on 12 January 2024 at 10.30am.

This claim raises questions about the boundaries of the right to free speech, and the permissibility of interference with that right under legislation that allows the state to freeze the assets of those who support policies or actions that destabilise Ukraine. It arises in the context of Russia's invasions of Ukraine in 2014 and 2022.

The claimant says he is a journalist who reports on events in the Donbas region of Ukraine. He considers it his life work to provide what he calls “a counterbalance” to widespread western misunderstanding of the true situation in the region. He says that he is the first mono-British national to be subject to sanctions by the British Government, and that his designation stems entirely from his expression of his own political opinions on social media to a primarily UK domestic audience.

The defendant says that the claimant is a propagandist for Russia, supported and feted by the Russian authorities, and that he publishes content that feeds into a Russian propaganda narrative, thereby supporting and promoting actions and policies which destabilise Ukraine and undermine or threaten Ukraine's territorial integrity, sovereignty, and independence.

The defendant designated the claimant for the purpose of financial sanctions, including asset freezing restrictions. The claimant applies to set aside a decision to maintain that designation.

The application raises the following issues:

(1) The nature of the claimant's activities and the factual basis on which he was designated (see paragraphs 2 and 3 above).

(2) Does the Sanctions and Anti-Money Laundering Act 2018 permit regulations that authorise the imposition of sanctions in response to free speech?

(3) Do the Russia (Sanctions) (EU Exit) Regulations 2019 permit the imposition of sanctions in response to free speech?

(4) Is the continuing maintenance of the claimant's designation an unlawful interference with his rights to freedom of expression, respect for his private and family life, and peaceful enjoyment of his possessions?

The claimant relies on his written witness statements and exhibits to those statements. The defendant relies on statements from a Deputy Director in the Sanctions Directorate of the Foreign, Commonwealth and Development Office (“FCDO”), together with extensive documentary exhibits.

Joshua Hitchens, for the claimant, and Maya Lester KC, for the defendant, provided me with focussed skeleton arguments which they supplemented with helpful oral submissions. I am grateful to them, and those working with them, for the excellent way in which the case was presented on both sides.

The background

Russia's invasions of Ukraine

In 2014, Russia invaded Ukraine and annexed Crimea and Sevastopol. The United Nations General Assembly passed resolution 68/262, calling upon all states to refrain from actions aimed at disrupting the territorial integrity of Ukraine and underscoring that Russia's annexation of Crime and Sevastopol had no validity.

In February 2022, Russia again invaded Ukraine. The United Nations General Assembly passed resolution ES-11/1, deploring Russia's aggression against Ukraine, endorsing the Secretary General's statement that Russia's military offensive was contrary to the United Nations Charter, and reaffirming that no territorial acquisition resulting from Russia's threat or use of force shall be recognised as legal. Russia's offensive continues, approaching two years since the 2022 invasion.

On 30 September 2022, Russia purported to annex the Donetsk, Luhansk, Kherson and Zaporizhzhia regions of Ukraine following “independence referendums”. The overwhelming consensus of the international community is that the referendums were illegal and, in effect, a sham: United Nations General Assembly Resolution ES-11–4.

Uncontested evidence served on behalf of the defendant (comprising a statement from a Deputy Director in the Sanctions Directorate of the FCDO, together with exhibits) testifies that:

“…Russia's war in Ukraine represents not only a threat to the United Kingdom's national security, but the most serious threat to European security and the international order since the end of the Second World War. It has brought large-scale, high intensity land warfare to Europe, and generated a refugee and energy crisis in the region. Russia's barbaric and continued targeting of Ukraine's civilians and civilian infrastructure has precipitated a dire humanitarian crisis and has caused at least 25,671 civilian casualties, including 9,287 civilian deaths. At least one child has been killed in Ukraine in each day of the conflict. Women have been subjected to trafficking and conflict-related sexual violence. The human cost on the battlefield has been devastating, with at least 100,000 soldiers killed or wounded on each side.”

President Putin's political propaganda

Alongside the ongoing land war, Russia wages a misinformation, disinformation and propaganda war (“the propaganda war”), taking advantage of social media to multiply its reach and penetration. This is described in a paper published by the Organisation for Economic Co-operation and Development dated 3 November 2022, “Disinformation and Russia's war of aggression against Ukraine: Threats and governance responses.” The aim of Russia's propaganda war is to cause confusion, build support for Russia's goals, and undermine the perceived legitimacy of Ukraine's response. It pays people to post manipulative messages online. It uses online accounts, purporting to belong to journalists, to spread disinformation. Where someone posts a message that is consistent with Russia's viewpoint on a social media platform, or a newspaper's online comments forum, it will amplify the message in order to convey a misleading impression of public support for the message, and also to evade tools used by social media platforms to seek to reduce the spread of disinformation. Facebook says that the countries that are most frequently targeted by foreign disinformation operations are the United States, the United Kingdom and Ukraine.

The themes of Russia's propaganda war include:

(1) Messages based on historical revisionism that question Ukraine's status as a sovereign state.

(2) Claims about neo-Nazi infiltration in Ukraine's government.

(3) Claims of threats to Russian populations in Ukraine.

(4) Claims of the Ukrainian government committing genocide in parts of Donetsk and Luhansk.

The OECD paper suggests that there is a need, on the part of the international community, “for rapid and continued evolution in ways to counteract” Russia's propaganda war. In respect of the use of sanctions, it says:

“…A straightforward, though potentially problematic, means of countering Russian disinformation on the war in Ukraine has been blocking or sanctioning media outlets that spread it. The European Union has applied sanctions on [Russia Today] and Sputnik. This only applies within the European Union and… the Russian government responded in kind, banning… other international media outlets… In support of the EU sanctions, some governments, such as the United Kingdom, suspended the broadcasting rights or banned Sputnik and Russia Today from operating in an attempt to limit the spread of Russian disinformation… The European Union also directly sanctioned Russian individuals in the media in response to Russia's invasion of Ukraine. This includes key personalities, such as [Russian journalists and hosts of TV shows]. The sanctions include travel bans and asset freezes, as well as limitations to making funds available to the listed individuals… The bans went ahead despite concerns raised over retaliation… which occurred when Russia directly blocked the BBC, Deutsche Welle and Voice of America… This response highlights the need to weigh the potential benefits of slowing the spread of disinformation via such bans with the clear risks they pose. Specifically, the corresponding blockages of outlets in Russia makes it increasingly difficult to share accurate information with Russian citizens about the war, already a major challenge. Banning Russian media also opens the door to accusations over freedom of expression.”

The claimant's activities

The claimant says he is a journalist, that he was chosen by The Guardian newspaper as a “student brand manager” and that he received some training from The Guardian.

He has worked for the Russian state-owned broadcaster, Russia Today. He has also featured on Russia's main state television channels, Rossiya-1 and Rossiya-24.

Since 2014, the Claimant has worked as a video blogger, producing content from Donetsk and Luhansk (areas of Ukraine controlled by proxy Russian administrations). His content has been widely disseminated on social media. At one point, he had 330,000 subscribers to his YouTube channel, 38,000 followers on Twitter and 22,000 subscribers on Telegram. He has uploaded around 2,000 videos to YouTube. Some of these have been viewed 1.8 million times, and the total number of views of his videos is in excess of 110 million.

In February 2022, the claimant was in the UK. On 22 February 2022, two days before the Russian invasion, he celebrated Russia's...