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  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.
represented Ehrenfeld, is pushing for Congress to pass the free speech bill
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
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
“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
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
Free press advocates in