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U.S. Senate passes 'libel tourism' bill

This week, the U.S. Senate unanimously passed a bill shielding journalists and publishers from “libel tourism.” The vote on Monday slipped past the Washington press corps largely unnoticed. Maybe it was the title that strove chunkily for a memorable acronym: the Securing the Protection of our Enduring and Established Constitutional Heritage (SPEECH) Act. Journalists and press freedom defenders outside the United States did, however, pay attention to the legislation, which they hope will spur libel law reform in their countries.

The bill, which is expected to sail through the House of Representatives and become law soon, protects U.S. journalists and writers from libel suits filed by repressive governments or wealthy tycoons in foreign jurisdictions such as England, where the law is heavily skewed in favor of the plaintiff. I wrote about the practice, known as libel tourism, last year.

Ehrenfeld's book sparked a libel tourism action.

The Senate vote comes after a long campaign by Israeli-American author Rachel Ehrenfeld who found herself slapped with a multi-million-dollar defamation suit by a Saudi billionaire she accused of funding terrorist groups. No problem, you’d think, if the suit was filed in a U.S. court, where the Saudi financier would have to prove Ehrenfeld’s material was false. But this action was brought in London, the libel tourism capital of the world, where the court would demand that Ehrenfeld prove her accusations were true.

Under the new U.S. law any such libel tourism judgment will be unenforceable in the United States. “This will make a difference in how other countries, people in other countries will look into suing Americans,” Ehrenfeld told CPJ. “It’s a victory for everybody who writes in America.”

It’s also a weapon for libel reform advocates overseas.

“It’s brilliant,” said British lawyer Mark Stephens. “If the Americans, as we hope they do, take this robust line, the British are going to have to take notice of it in a more comprehensive way.”

The new British government has signaled that it will introduce some kind of reform but it falls short of what many UK journalists and publishers want.

Stephens, who is a board member of the Media Legal Defence Initiative, sees implications beyond the UK.

The people who are perhaps going to be the greatest beneficiaries of these kinds of laws are going to be people who suffer in totalitarian regimes where speech is repressed. Everyone focuses on London because that is where … crooks and brigands from all over the world jet in to launder their reputations. But what you’ll find is that there are dissidents who are now able to speak, or who will be able to speak freely about totalitarian regimes and corrupt regimes around the world and expose the misdeeds of those rulers in a way which would otherwise have left them exposed to bankruptcy and penury.”

How will this work? Well, one way will be for online news outlets and bloggers to host their sites on servers in the United States.

Take the Malaysian bloggers as an example,” says Stephens. “The government may be able to get a judgment against Malaysiakini but it’ll never be able to enforce it, because the servers are based in America. So the judgment will be a worthless piece of paper and that will be true of oppressive places in Southeast Asia, in the Gulf, in Africa in the former Soviet Union and to a lesser extent in South America.”

It’s not going to turn the United States into an offshore tax haven for free speech. That’s something that WikiLeaks founder Julian Assange wants to achieve in Iceland. But Sen. Patrick Leahy’s legislation is setting a new standard for others to follow.

Ehrenfeld thinks fertile ground for reform lies in the Commonwealth, a group of 54 countries, many of which inherited the British legal system.

“The Commonwealth countries may take a lead from that. I’m not holding my breath that Singapore will change anytime soon but Canada, the Supreme Court has already made a ruling that was more towards American law,” she said.

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Comments

Its different that what you wrote. In the US a public figure plaintiff would have to prove that it is false, AND that the defendent knew it was false. See New York Times vs. Sullivan.

The result is that in the US, its very easy to smear a public figure and never get punished - you just "heard" something and thus you're safe. Even if a public figure does win (e.g. Steven Pagones agains "Reverend" Al Sharpton), it can take many, many years.

Now about Rachel Ehrenfeld: maybe she should have taken care to do real research instead of relying on rumors spead by CIA Woolsey about that Mafouz guy. Grow up, Rachel!

Shouldn't you have to prove that what you are saying is true? It seems to me that England has the libel laws correct and that the US is supporting shoddy journalism.

To Tilman: Your Sharpton example is erroneous. Sharpton was not a journalist or author. He was accused of defaming Pagones in repeated public comments. Any delay in the case was in the enforcement of the ruling, not in the ruling itself. Your interpretation of Sullivan is also flawed. Under Sullivan, a plantiff must prove the defendant acted with malicious disregard for the truth.

Your arguments obscure and distort the intent of this bill. The bill is intended to protect anyone in the US who writes or expresses views from being sued in another country where the libel laws are open to abuse.

@dar: I know this may be hard to understand, but the way libel law currently operates in England, the truth alone isn't an absolute defence against a suit for libel or slander; that's the problem and why London has been dubbed the world's capital for 'libel tourism'.

The most famous recent example was the long-running proceedings brought against journalist Simon Singh by the British Chiropractic Association, because he pointed out publicly that the medical evidence clearly disproved their claims of being able to cure a broad spectrum of conditions using chiropractic. The truth was clearly on his side. He could, as you say, 'prove' his points. The problem was, the initial judge's ruling was that by using the phrase 'happily promote bogus treatments', Singh had stated that the BCA were involved in an active deception of their customers, rather than merely deluding themselves into believing in the efficacy of chiropractic inteventions.

So the British court had abruptly skewed the case in the plaintiff's favour by making all of Singh's evidence moot. He was suddenly being asked to prove a claim which he had not actually put forth. This is what the author of this article is referring to. The new US law is not opening the doors wide to 'shoddy journalism', but rather leveling the playing field so that private researchers and writers can investigate and publish their findings about powerful and wealthy interests without immediately being bullied into silence by hordes of libel lawyers.

Marcus Stefan Brodeur July 26, 2010 8:47:38 AM ET

@dar: Another problem is that British libel law makes it easy for a plaintiff with deep pockets to silence critics who can't afford a protracted lawsuit. (Not that this is limited to the UK, of course - but UK law makes it worse.) Google "McLibel" for an example where the defendants did manage to mostly win...after two years and with a LOT of help.

@Marcus - that still sounds fair to me. The wording is ambiguous, but a phrase like "happily promote bogus treatments" certainly sounds like an accusation of deliberate and knowing deception to me. Singh might not have intended it that way, but if so, should have been a lot more careful about his wording.

I think the comment above mine has it pretty much right. The real problem with libel law in England is the judge's ability to tell the defendant what they meant, regardless of what their actual intent was.
I will say, though, the "In America you're innocent until proven guilty, in England you're guilty until proven innocent" is quite a misleading way to put it. It's certainly true if you are the author of a potentially libellous statement, but if you're the subject of one, England is suddenly a lot fairer.
In America, you're innocent until a journalist decides you're guilty, whereupon you have to prove that you are, indeed, innocent.
In England, you're innocent until a journalist claims that you are guilty and backs that claim up with evidence strong enough to pass muster in a court of law.
The problem isn't England's laws, it's our judges.

Paulnewmanseyes July 26, 2010 6:52:16 PM ET

To Brodeur:
What planet are you from? The statement "happily promote bogus treatments" clearly accuses them of defrauding their clients. If you are going to make accusations against some one then you should be able to back it up with proof. Just like in contract law, it's not what you meant but what you wrote!

To Zych:
That maybe true about the deep pockets, but that is true of all tort law in the US. Big corporations (including insurance companies) daily "win" suits because they have the money and the time.

In general, because of the nastiness of the Republican party in their attempts to win (remember those "white house plumbers", they get them together every time the republicans are in the white house), it protects paid for "newscasters" (and I use that term about as loosely as possible to be able to classify them as such) like Fox News to make even more wild and absurd claims about people they don't like and get away with it! If any democrats voted for this they were nuts!

Dear Commite to protect Journalist,

I am student and i was woundering why you guys didn't say anything about julian assanage if your commite is really meant to protect jounalists.

THANK YOU

Marta