Lawrence J.
Haas
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February 17, 2009
Terrorists Fight Back
With ‘Libel Tourism’
Facing growing threats to free speech across the West from what’s called
“libel tourism,” lawmakers in Washington and London are beginning to
awaken to propose legislative remedies.
Their response is long overdue.
Libel tourism is the practice by which the subjects of critical books or
articles – such as Arab billionaires who allegedly finance terrorism –
sue for libel in jurisdictions where they will likelier win, such as
Great Britain, than in those with stronger free speech protections, such
as the United States.
In
today’s interconnected world, where the written word spreads across
borders not just in books and articles but via the web, a libel suit in
Great Britain has a cascading effect across the West.
That is, what’s written in the United States but sold in Great Britain
can subject a writer – or the publisher that carries the writer’s words
– to a libel suit. That, in turn, can have either of two unfortunate
results: 1) prompting the writer to find a less financially troublesome
line of work, or 2) reducing the number of outlets willing to publish
his or her work.
The signature case of libel tourism involves Rachel Ehrenfeld, director
of the New York-based American Center for Democracy and the author of
several books, most notably in this context the 2003 work Funding
Evil: How Terrorism is Financed and How to Stop It.
In
it, she accused Saudi businessman Khalid bin Mahfouz of financing
terrorism. The book was not published in Great Britain but, because 23
books were sold there over the Internet, Mahfouz filed suit there.
From the standpoint of libel law, Mahfouz’s strategy made eminent sense.
Unlike the United States, where the burden of proof in libel law falls
on the plaintiff, the opposite holds true in Great Britain, where the
burden falls on the writer to prove that what he or she wrote is true.
Ehrenfeld disputed the charge but, rather than fight a costly battle,
she chose not to contest it. The court awarded Mahfouz a $225,000
settlement that he could try to collect in the United States.
It
was hardly Mahfouz’s only success. Through the mere threat of filing
suit against his critics, he has, according to Ehrenfeld, obtained and
boasted about settlements and apologies in nearly 40 cases.
In
response, New York State enacted “Rachel’s Law,” enabling New York
writers to ask their state’s courts to declare libel judgments
unenforceable if they come from countries with weaker First Amendment
protections than America’s. Illinois has since enacted its own such law.
Advocates, however, know they need a federal law, not a patchwork of
state laws, to truly protect U.S. writers. Last week, the House
Judiciary Committee’s Commercial and Administrative Law Subcommittee
gathered to hear testimony from Ehrenfeld and other experts.
How, precisely, federal lawmakers should respond to the problem is a
matter of some dispute.
Last year, the House approved legislation, sponsored by the
subcommittee’s chairman, Tennessee’s Steve Cohen, to provide the same
protection at the federal level as Rachel’s Law provides in New York.
Senators Joseph Lieberman and Arlen Specter and U.S. Rep. Peter King,
however, want to go farther – enabling writers to sue for damages in the
United States in cases in which accusers have brought claims of libel in
foreign courts that would not pass muster in U.S. courts.
Across the Atlantic, critics of libel tourism in Britain’s parliament
are beginning to stir as well.
In
December, three influential Members of Parliament called for an overhaul
of British libel laws.
In
the House of Commons, senior Labor Party Member Denis MacShane called
libel tourism “an international scandal” and “a major assault on freedom
of information,” and he charged lawyers and courts with “conspiring to
shut down the cold light of independent thinking and writing about what
some of the richest and most powerful people in the world are up to.”
Justice Minister Bridget Prentice promised to consider stronger
protections for defendants in libel cases. A parliamentary committee
plans to study the issue. Its chairman, John Whittingdale, said a large
number of concerned individuals have submitted materials to his panel.
But interest is one thing, action another. New laws are hardly a done
deal in London or Washington. Free speech advocates will have to work
hard to push the needed changes to enactment.
They have not a minute to waste. At stake is the free flow of
information about terrorism that could prove vital to national security.
© 2009
North Star Writers Group. May not be republished without permission.
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