By Nick Bano (@nickbano)
In 1649 the radical Christian group the Diggers made a public declaration explaining that, in their view, landlords are thieves:
“Those that Buy and Sell Land, and are landlords, have got it either by Oppression, or Murther, or Theft; and all landlords lives in the breach of the Seventh and Eighth Commandements, Thous shalt not steal, nor kill”.
In 2022, though, a student tenant who accused her landlord of theft was successfully sued for libel and slander.
There’s obviously a big difference between saying landlordism in general is akin to theft and saying that a particular landlord has behaved dishonestly. But it’s worth recognising that there’s a long tradition of criticising the behaviour and economic foundations of landlordism as a trade; of equating it with stealing regardless of the fact that rent-seeking is lawful.
This article looks at the case (Rafique v ACORN  EWHC 414, QB), and what housing activists should learn from it.
As far as I know, Rafique is the second time that a private landlord has brought High Court proceedings against ACORN housing activists in England & Wales.
The first, last summer, was Gitto Estates v Persons Unknown  EWHC 1997 (QB), and it was a spectacular damp squib. The landlord went in hard, making all sorts of allegations about an ACORN demonstration at an estate agents’ office. However, unfortunately for the landlord, the judge found ‘a clear body of evidence that suggests that protests have been conducted in a lawful manner’.
In Gitto Estates the landlord also failed to produce evidence to show that some of the more serious allegations had happened at all. While the court did grant an injunction, it really only banned ACORN members from doing things that would have been unlawful anyway. The landlord may well have gone away thinking that the whole thing had been a waste of everyone’s time and money.
Rafique v ACORN, though, is a troubling development. As well as seeking an anti-harassment injunction, the landlord founded her claim on the notoriously oppressive system of English defamation law. Libel and slander. We know that billionaire landlord John Christodoulou has threatened to sue campaigning tenants for defamation before, and I’ve been approached by a number of renters’ groups when other landlords have fired off threatening letters, but this is the first actual defamation claim against tenants that I’m aware of (at least since the 1950s).
What happened here
Zobia Rafique’s tenant was a student in Sheffield, and a member of ACORN. She had been granted a tenancy agreement and had paid a £300 deposit. But something seems to have gone wrong and she asked for the deposit back the next day. It wasn’t given to her. ACORN campaigned over several months to try to get the deposit returned.
The campaign apparently included allegations (later conceded by ACORN to be unfounded) that the landlord ran a fraudulent business, had caused the tenant to sign a blank tenancy agreement and charged additional fees, and had ‘stolen’ the £300 deposit.
As well as singing outside at Ms Rafique’s home address, being rude to her in a supermarket and a number of other impactful campaigning activities, the case centred on a speech that the tenant had given at a rally at Sheffield Town Hall.
There are two important things to note about the High Court judgment.
First, I am not a defamation lawyer, and it is an extremely specialised subject. What’s said about this case here must not be taken as expert commentary.
Second, the case wasn’t defended. ACORN and the tenant had both been sued, but ACORN accepted that there had been “no good foundation” for the fraud & theft allegations and reached a settlement with the landlord before the hearing, so the judgment only deals with the claim against the individual tenant. The tenant herself didn’t formally defend the claim, so the case concerns a ‘default judgment’, which is a sort-of automatic win which the court can award if the defendant doesn’t participate. So the key issues in the case weren’t fully aired. We don’t have the full factual background, nor any of the competing legal and factual arguments and analysis, that we might ordinarily expect to see the court weighing up.
The judgment deals with three legal points:
On the harassment point, because the tenant had not disputed the factual basis of the landlord’s complaints about the campaign, the judge accepted both that the incidents had happened and that the tenant had been complicit in them. He decided that the actions met the legal definition of harassment.
As far as libel is concerned, this centred on the landlord’s complaint that the campaigning activities had been recorded and publicised. The judge accepted that the tenant had published statements that were “meant and were understood to mean that the claimants operate a fraudulent business, and that they defrauded a vulnerable student by making her sign a blank contract and then added additional unexpected fees”.
The slander is the most interesting point because it’s not quite clear what the judge meant. He said that the tenant’s speech at the town hall “imputes a criminal offence and disparages the claimants in their profession as landlords” (emphasis added).
Clearly, it could be slanderous to falsely say that someone has committed a criminal offence, but the second part of the sentence is the difficult bit. The judge might have meant that the allegation of the offence was, itself, disparaging of the claimants in their profession of landlords, or he might have meant that there were other, separate, words which were disparaging. If it’s the latter, then it’s difficult to understand how the tenant had said anything different from Adam Smith, Jean-Baptiste Say or the Diggers. Was he saying that simply describing the nature of a landlord’s business and economic function, albeit in robust and critical terms, was against the law?
Implications & resources
This trend for public relations-focused litigation by landlords seems to be an extension – the logical endpoint of – the ‘softlord’ phenomenon. Despite hundreds of years of economic critique, and despite a rich tradition of tenants picketing landlords at their homes, private landlords simply cannot bear to be criticised, or to be thought of badly. It’s somehow unfair to hold a mirror to the phenomenon of landlordism, and to point out that the exploitation inherent to the relationship looks an awful lot like a form of theft. It’s also somehow unfair for tenants to directly target landlords in a personal way, regardless of the fact that they are (directly and personally) profiting from tenants’ rent payments.
Will it happen often? I suspect that not many landlords will have the stomach for this sort of fight. A defamation claim is an extremely costly, stressful and often humiliating process for all sides (win or lose – consider the ‘Wagatha Christie’ debacle).
Of course, there’s an element of the Streisand effect here, too: I’m sure I never would have heard of Zobia Rafique or her business as a landlord if she hadn’t brought this claim, and – equally – the case has done something to raise the profile of the dedicated campaigners at ACORN. Particularly if tenants do robustly defend claims (perhaps pointing out the hundreds of years’ worth of anti-landlord analysis), landlords may end up with egg on their face even if they do technically win. But it’s yet another risk that we, as a movement, have to face. Another disadvantage built in to the system of landlord-tenant relations.
And, sadly, there are very few resources available to those without access to expensive legal representation. Legal aid isn’t readily available for defamation proceedings. It’s ironic that the crowning glory of Keir Starmer’s legal career was a case called Steel & Morris v UK, in which he persuaded the European Court of Human Rights that the UK government had failed the defendants in the ‘McLibel’ case because legal aid was generally unavailable in defamation cases (which meant that Starmer had represented the defendants pro bono at various points). But legal aid provision has only got worse since then. So your best bet is still to ask whether Comrade Keir has got any time to represent you for free.
Obviously it’s better if you join a renters’ group. They’ll have better access to professional and institutional advice, they’ll be better prepared than individuals to weather the storm, and solidarity in the face of an oppressive landlord is absolutely crucial.
But for the groups themselves, this case exposes a difficulty. We must start from the position that we believe our members when they come to us with a problem, but at the same time we have to be alert to the possibility of launching a public campaign and later having to admit that the allegations weren’t true, or weren’t provable. We need to be careful, and do our best to be sure about what’s happened before launching a campaign. It’s useful to have protocols for social media posts, especially when dealing with private landlords.
The take-home point is that if you’re going to actually defame your landlord, by saying something specific which you later admit is untrue, don’t be surprised if she wins. But if a group is confident about the allegations, or if it’s simply going to describe what it is that landlords do, then even the most litigious landlord will know that they have an ugly fight on their hands.
Postscript - publication
A draft of this article was sent to a number of people involved in housing campaigns, because concerns had been raised that drawing attention to Zobia Rafique’s decision to sue might encourage other landlords.
Obviously it’s important to do the comradely thing, and to avoid any needless risk to activists and groups.
But when something goes wrong it’s also important that everyone can learn from it. The feedback received from almost everyone was that these sorts of issues need to be discussed, openly and frankly, rather than hidden away. All of us in the housing movement, and not just those directly affected by the case, need to treat these issues as learning opportunities. There was an appetite, and a need, to do so here.
While it’s important to balance the risk against the benefits, a well-advised landlord would (I hope) baulk at the idea of bringing expensive defamation proceedings even in the most clear-cut case. Only the daftest and most bloody-minded will try. Besides, the landlord community is talking about this issue internally, and it has access to lawyers who will be well aware of the possibility of taking legal action against our movement. The risk of making things worse simply by having this discussion seems to be fairly low.
Nick Bano is a lawyer and campaigner specialising in homelessness and tenants' rights. He is currently working on a book for Verso on the housing crisis.
14 March 2022