Free Speech Protection Act could slow ‘libel tourism’

Free press advocates in Britain are looking to a bill stuck in the U.S. Congress for moral support in the fight to reform England’s draconian defamation laws. The U.S. bill, the Free Speech Protection Act 2009, is itself the product of those laws, which have made London the capital of “libel tourism.” 

A prime backer of the legislation now before the Senate Judiciary Committee is U.S. investigative author Rachel Ehrenfeld. In her 2003 book “Funding Evil: How Terrorism is Financed and How to Stop It,” Ehrenfeld accused billionaire Saudi businessman Khalid bin Mahfouz of channeling funds to terrorist groups. The book was published in the United States and Ehrenfeld assumed she would be shielded by the First Amendment. Bin Mahfouz, who has denied financing terrorism, decided to sue. Not in Riyadh or New York, but in London.

“Only 23 copies were sold in the UK on Amazon,” Ehrenfeld told CPJ. “The book has nothing to do with England, I have nothing to do with England,” said Ehrenfeld who refused to contest the suit in an English court.

In 2005, a court in London entered a default judgment against her, ordering the payment of damages of little more than $250,000. It also ruled she should apologize to Bin Mahfouz, who died in August this year, and destroy copies of her book.

Ehrenfeld had become another victim of libel tourism, a growing practice among wealthy non-British business tycoons and Hollywood stars who file defamation suits in London, usually against U.S.-based publishers, that would be thrown out by a U.S. court. English libel law is notoriously plaintiff-friendly. It puts the burden of proof on the defendant, who has to show that what is written is true. In the United States, the plaintiff has to prove that material in a book or article is false.

So anyone with deep pockets can claim he has a reputation to defend in England and bring a libel action. Courts have allowed suits where a ludicrously low number of copies have circulated in Britain, as in Ehrenfeld’s case. The English definition of what constitutes “publication” is also arcane, and again, favors the plaintiff. Any issuing of the offending statement or piece, no matter how long after it first appeared in print, is deemed a publication based on an anachronistic 19th century precedent (Duke of Brunswick v Harmer [1849] 14 Q.B. 185). With the archiving of information in the digital age, huge amounts of material are susceptible to a suit.

“In the UK they should be embarrassed and should change the law,” says Ehrenfeld. U.S. media outlets and publishers share this view, fearing the chilling effect of an English system that forces defendants to settle rather than face some of the highest legal costs in the world and the prospect of crippling damages.

They laid out their concerns in March in a submission to a British parliamentary committee that is looking into libel law reform. The House of Commons’ Culture, Media and Sports Committee is expected to make its recommendations to the government before the end of the year, although free speech advocates doubt there will be a fundamental overhaul of defamation law any time soon. London’s Sunday Times went so far in an article this month as to suggest American news outlets might block access to their Web sites and stop selling newspapers and magazines in Britain to avoid litigation.

Nobody knows how many U.S. publishers may already have pulled publications from the international market because of English libel laws, which are the basis for defamation legislation in much of the Commonwealth as well, according to New York-based First Amendment lawyer Daniel Kornstein.

Kornstein, who represented Ehrenfeld, is pushing for Congress to pass the free speech bill because U.S. journalists now enjoy only patchwork protection. In May of last year, New York became the first state to pass an anti-libel tourism statute. Illinois, Florida, and California have followed suit, offering writers there some protection from enforcement of a foreign court order.

“This bill should be passed,” Kornstein told CPJ. “One, it requires no funding. Two, it makes a public statement about freedom of expression, holding the banner aloft for everybody. [And] it should remove the chill that could surround the publication of certain controversial books.”

Mark Stephens, an English libel lawyer who drafted the U.S news organizations’ submission to the British parliamentary committee, agrees federal legislation would help. “I think it would be hugely beneficial,” he told CPJ from London. The only serious opposition to English libel reform comes from a small number of law firms in the UK that have grown rich on libel cases.

Some, according to Stephens, employ overseas agents to encourage litigants to come to London. “Lawyers have been … ambulance chasing around California with agents in Beverly Hills, lawyers who act for celebrities in Beverly Hills saying, ‘Look, you can’t do anything in America because of the First Amendment, but come to London. You can do it there, and then we can affect what coverage your client gets by getting a judgment in England, which is effective in America.’ It’s crazy,” he said.

Stephens says even at the state level, U.S. legislation has helped him. “I am using the American defenses probably three or four times a month … the majority in relation to books and bloggers. But I am also using it probably once a month in relation to large media organizations.” The Free Speech Protection Act, which is sitting on the desk of Judiciary Committee Chairman Sen. Patrick Leahy, would also offer U.S. journalists and authors protection from malicious or frivolous lawsuits brought overseas, according to Ehrenfeld.

She cites the case of U.S. freelance Joe Sharkey  who faces a $280,000 civil defamation suit in Brazil over comments about a plane crash he says were wrongly attributed to him. Sharkey, who writes for the New York Times, was aboard a U.S. business jet that collided with a Brazilian commercial aircraft over the Amazon in 2006.

“If he lived in New York he’d be protected,” said Ehrenfeld, referring to the Libel Terrorism Protection Act  passed by the state legislature last year. “But he lives in New Jersey and Arizona, states that do not have such a law. That’s why it is important Congress passes this bill.”