Libel Tourism: Taking a vacation from your First Amendment rights

The New York Times weighed in Tuesday on “libel tourism” and advocated for the Senate bill that would protect U.S. citizens’ First Amendment rights from the more stringent laws of other countries, notably England.

Senators Arlen Specter and Joe Lieberman recently introduced the Free Speech Protection Act of 2008 in the U.S. Senate.  A bi-partisan effort prompted primarily by concern over the rights of U.S. citizens to write about terrorism, it would protect American citizens from paying damages in libel cases in foreign courts.  In other words, First Amendment rights would not dissolve at U.S. borders.  American defendants could also sue the plaintiff for triple damages if the original case were “part of a scheme to suppress a U.S. person’s First Amendment rights,” according to House Rep. Peter King [1].  New York and Illinois have already passed similar laws; we urged the passage of the New York law last year in a letter to Gov. Paterson.

In U.S. libel suits, the plaintiff must prove that an allegation is false.  Under British law, the defendant is pinned with the responsibility to prove that a statement is true or fair.  Groups monitoring international human rights violations find themselves in a perilously disadvantaged position.  Anonymous sources are often the only option in investigations of crimes under authoritarian governments.  Several months ago, Human Rights Watch of New York came under legal fire in London for  its claims implicating a foreign citizen in a mass murder.  According to HRW’s general counsel Dinah PoKemper in The Economist,

“We were required to spend thousands of pounds in defending ourselves against the prospect of a libel suit, when we had full confidence in the accuracy of our report.”

Whether or not they can prove their statements true, defendants under British law have to pay legal fees.  So theoretically, a U.S. author whose work is distributed in the U.K. could have to pay a substantial amount of money if a claimant were able to prove her material defamatory, no matter her legal response.  The suit would be a violation of First Amendment rights, and the threat itself engenders a serious chilling effect on free speech.

U.S. citizen Rachel Ehrenfeld had this experience when a subject of her 2003 book “Funding Evil” took action against her in England, where 23 copies had been bought online.  Khalid bin Mahfouz, a Saudi businessman, denied funding Al Qaeda before September 11.  When Ms. Ehrenfeld declined to appear in court, she lost by default, and Mr. Mahfouz was awarded £50,000.

Critics of the Free Speech Protection Act, including Mr. Mahfouz’s lawyer, Timothy Finn, note that the law addresses a problem that doesn’t exist, since “no foreign libel judgment has ever been enforced in the United States.”  Yet Ms. Ehrenfeld argues that the mere threat of a lawsuit is enough to make writers reconsider what and where to publish.

A federal law would make it clear that the publication of U.S. citizens’ work in other countries doesn’t nullify their First Amendment rights.  British lawmakers are currently collaborating with U.S. media lawyers and editors to issue a report that might prompt changes to the British libel laws themselves.  As it stands now, though, only residents of New York and Illinois can be sure that their free speech is fully protected overseas.

*UPDATE:  On Thursday (6/11), H.R. 2765 passed the House Judiciary Committee.  Rep. Steve Cohen (D-Tenn)’s bill states that the U.S. need not recognize foreign libel judgements that are “repugnant” to the First Amendment.  Sen. Specter’s more rigorous bill hasn’t yet been put to a vote.

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3 Responses to Libel Tourism: Taking a vacation from your First Amendment rights

  1. Matt says:

    Problem is: our Constitution is the governing document of OUR country, not for other countries. Forcing our laws on other countries is legal imperialism – we could work to encourage other countries to change their laws but deciding that their laws don’t apply to us because we’re Americans is kinda the logic that got us into Iraq. Just sayin’.

  2. There sure is a fine line between forcing U.S. laws on other countries’ citizens and protecting U.S. citizens from other countries’ laws. I say that the Free Speech Protection Act is important because it would do the latter.

    True, the plaintiffs in foreign libel cases would be held to a legal standard of a country not their own when suing Americans. But the alternative is that Americans become subject to standards which, according to Rachel Ehrenfeld, stifle free speech at home when authors become fearful of legal reprisals abroad.

    A country has the prerogative to decide which texts may cross its borders, but it shouldn’t have the right to say what citizens of other countries may write and publish within their own. The threat of a huge fine does just that, if indirectly.

  3. Maria Mccann says:

    At today’s Senate Judiciary Committee which addressed the issue of foreign libel lawsuits we were provided with a one sided debate with the usual well rehearsed and limited exploration of the subject says UK and Irish Libel lawyer Paul Tweed:

    “We were told, for the umpteenth time, about the plight of author Rachel Ehrenfeld, who after being successfully sued for libel in the British courts embarked on a lobbying campaign in the United States aimed at blocking the enforcement of the UK libel judgement against her.

    “In the land of supposed free speech this campaign has been surprisingly effective and has succeeded in drowning out any argument which challenges Dr Ehrenfield’s position; in fact the counter argument has been systematically ignored by the US media which has enforced its own censorship of any dissenting voice, and it would seem from today’s’ events this has been extended to the Senate committees selection of submissions.

    As a member of the UK Ministry of Justice’s Working Group on the Law of Libel, and a UK/Irish media lawyer of more than thirty years standing Paul Tweed has offered the Committee the opportunity to hear the other side of the current debate.

    “The only participants appear to have been defence lawyers who represent the media, and who had clearly been afforded considerable time to enable them to prepare their respective submissions. This indicates a lack of balance and unfairness in approaching any worthwhile examination of this issue”

    The absence of balance in the debate is consistently demonstrated across the US media. Mr Tweed has expressed bewilderment at the totally one sided press coverage in the United States by the likes of The New York Times and The Washington Post, who have refused to publish any dissenting opinion expressed by UK and US claimant lawyers. :

    “The hysteria and priority given to this issue in the US by lobbyists and the press is all the more baffling as having acted for international claimants on many occasions during the course of the past three decades, my firm has never once had to seek enforcement against assets in the US. Indeed, the Claimant in the Ehrenfeld case, Saudi businessman Bin Mahfouz, has apparently not even sought to enforce his judgment. “

    “These moves to block the enforcement of UK libel judgments in the US are totally disproportionate, excessive and unnecessary, and deeply offensive towards the UK courts, not to mention UK law.

    “There has been a totally disproportionate response to these law suits. The fact is that the big losers will be US citizens abroad who are likely to be treated as fair game by the more unscrupulous sections of the tabloid press as a result of the publicity given to the libel tourism legislation.

    “The question also has to be asked as to where this interference in another country’s legal system is going to end. What about the comparable case where a US citizen is entitled to sue for damages for personal injuries sustained if he is knocked down as a result of the negligent driving of a motorist while crossing a London street? What is the difference between an entitlement to sue for damages for personal injuries and a similar redress for injury to reputation?

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