Free Speech Protection Act could slow 'libel tourism'

By Robert Mahoney/Deputy Director on November 16, 2009 10:57 AM ET

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.”


It's silly that we have laws like this, that need to cover the whole country, but are enacted on a state by state basis. What's the law in New Jersey needs to be the same as what's in New York.

In many cases horrible problems have been avoided for the community as a result of anonymous blogging. This includes whistle blowing for white-collar criminals, community awareness when sexual predators move into the neighborhood, and many other alerts that are of great community benefit.

Benefits notwithstanding, you can't make an omelette without breaking eggs and anonymous free speech on the Internet is one such omelette. There is no such thing as free speech; there is always a cost. Sometimes that cost is acceptable, moreover desirable, particularly in the case of positive community awareness. However, often their many false and deceptive rumors, and libelous attacks are motivated only by hatred and vindictive antisocial promptings. More often than not, these serial cyber defamers have some type of antisocial personality disorder. They have nothing better to do than hurt other people; in fact they are actually fueled by other people's pain. Normal people like 97% of the readers of my comment cannot begin to relate to how these people think. Stop for a moment and imagine not having a conscience..... it is simply impossible.

A concerted, focused and malicious Internet smear campaign can be as devastating for a person that relies on his or her reputation for employment as a fire can be for a farmer who loses his fields, barns, and livestock.

Respectfully submitted by Michael Roberts. Internet Libel Victim's Advocate.

Just FYI, the lawsuit against me in Brazil rests on the bizarre assertion that in reporting and commentary after the 2006 mid-air Amazon collision that I was one of 7 survivors of, I defamed and caused dishonor to the entire nation of Brazil and every single citizen in it. The complaint cites absurd and false charges -- for example, that I wrote that Brazil was "idiots of all idiots." Even if I had written a barely-English phrase like that, it would not have been actionable in any U.S. court. Also, the Brazilian authorities have said, according to Brazilian media, that they plan to file a criminal charge against me, of causing dishonor to Brazil, once the civil judgment is rendered.

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