Over the past few months, I've blogged several times (see here and here) about the proposed federal Free Speech Protection Act of 2008, which would allow a federal court to enjoin the enforcement in the United States of a foreign libel judgment if the speech at issue would not constitute defamation under U.S. law. "Libel tourism" describes the practice of libel plaintiffs who pursue claims against American publishers in foreign courts that offer few, if any, of the protections for speech available in the United States.
The federal bill is meant to address situations like that of Rachel Ehrenfeld, who was sued for libel in the United Kingdom by Saudi banker Khalid bin Mahfouz over her book, "Funding Evil: How Terrorism is Funded and How to Stop It," which she published in New York. According to evidence in the case, a mere twenty-three copies of the book were sold in England, but that was sufficient for a U.K. court to exercise jurisdiction over Ehrenfeld. As a result of her refusal to appear or contest the court's jurisdiction, the court entered judgment against Ehrenfeld in the amount of $225,000. Ehrenfeld then sought a declaratory judgment in New York federal court stating that the U.K. judgment was not enforceable in the United States because it did not comport with the First Amendment. Punting on that issue, the federal court certified a jurisdictional question to the New York Court of Appeals, which held that New York courts did not have authority to hear Ehrenfeld's case. (New York recently passed its own Libel Terrorism Protection Act to address this issue.)
Well, on Sunday the New York Times took up the issue with an editorial by Adam Cohen entitled ‘Libel Tourism’: When Freedom of Speech Takes a Holiday:
The result is what lawyers call a "chilling effect" — authors and publishers may avoid taking on some subjects, or challenging powerful interests. That has already been happening in Britain. Craig Unger’s “House of Bush, House of Saud: The Secret Relationship Between the World’s Two Most Powerful Dynasties” was a best seller in the United States. But its British publisher canceled plans to publish the book, reportedly out of fear of being sued. (A smaller publisher later released it.) . . .
Britain should rethink its libel laws, as the U.N. committee urged, for the sake of its citizens. But until it does, the United States should ensure that other countries’ pro-plaintiff libel laws do not infect this country and diminish our proud tradition of freedom of expression.
As I've noted in the past, this is an important issue for both traditional publishers, who are increasingly moving to online distribution, and citizen media, who already use the Internet to reach audiences all over the world, including in countries that don't have adequate free speech protections. Let's hope that Congress acts quickly on this.
For more on the proposed legislation, see Marc Randazza and Carolyn Elefant.
Comments
English libel laws
As one who has spent many days and hours in the London libel courts with her own libel case, I can truly say this law is needed. And sadly for British democracy, it is not the only peril Americans can face in the English libel courts.
This may sound trivial compared to the funding of terrorism, but I have been systemically defamed across the British press over a relationship I had with one of the richest men in the UK, Bruno Schroder of Schroders plc on the London Stock Exchange. This was caused by his long term partner, Suzanne Maltzahn, out to keep her man at any cost to me and my reputation. And because of who he is, I have been unable to get an adequate right of reply to trumped up and false allegations.
When I was finally given the chance of a right of reply in The Daily Mail, I got defamed all over again. I was stunned. This is my current libel claim. Fortunately, I already settled a case against The Express Newspaper over similar allegations. One would think this would help settle my current case, but no.
The Daily Mail and Mr. Schroder's lawyer, Rupert Grey, are using a nasty tactic in English litigation of trying to end my case with costs. And they don't want anyone to know about it. That means even though I am the plaintiff with an excellent case, they want it thrown out unless I pay them unfair costs ordered against me in interim hearings. This is so unjust. At the moment, Rupert Grey is asking the same judge that heard Rachel Ehrenfeld's case, Mr. Justice Eady, to order that my case be thrown out against Mr. Schroder unless I pay him £25,000 ($50,000). Aside from my inability to pay it at the moment, this is absurd to me, especially considering he is a billionaire. The Daily Mail seeks to do the same.
Several English lawyers have told me this is against The European Human Rights Act, incorporated into British law in 2000, but not yet tested with tactical costs orders. This is not the only unjust obstacle. All my hearings in the case, bar one, have been held in secret, against my wishes, against English court procedure, against English common law and against The European Human Rights Act. And my court file is sealed. Yet, I am trying to clear my name after being libelled in one of the largest circulation newspapers in the UK and on the internet. I am shocked at every new hurdle put up against me.
This brings me to another problem. Several of the defamatory articles about me were syndicated to US databases. So, I am being defamed in my own country with no right of reply unless and until I can succeed with my English libel case, which they are trying to stop with costs and private hearings. England may have the strongest libel laws in the world, but they also have a very inaccurate press. This was recently admitted in a column by Gideon Rachman in the Financial Times.
So, I ask the sponsors of this excellent bill to bear in mind these other problems encountered by Americans in the English libel courts. Apparently, not only can the rich practice 'libel tourism', they can stop valid claims against them and deny plaintiffs, as well as defendants, their human rights. They can defame and libel and get away with it in one of the world's oldest 'democracies'.
It is worth noting that it was just this type of abuse of power that sparked the American Revolution. Instead of fighting, this time we are passing laws. I must say it is a bit more civilized, but sad that it is still necessary over 200 years later.