As the old adage goes, books have a life of their own. I learned this firsthand after publishing my third one, Funding Evil , which identified networks of criminals, billionaires, and state leaders who underwrite terrorism and political violence. Six years later, what I wrote about has little to do with the book’s legacy: an ongoing debate about libel law in England and the U.S., and a movement for reform on both sides of the Atlantic. The controversy began in early 2004, when I received a fax in my Manhattan home office. Saudi billionaire Khalid bin Mahfouz – once the head of the largest bank in the Middle East – was threatening to sue unless I retracted any mention of his well-documented links to Al Qaeda, Hamas, and other radical Muslim organizations. I felt confident in my material, so I called his bluff. What happened next was unexpected: he filed suit in an English court.
My book was published and marketed only in the U.S. But Mahfouz’s lawyers argued that 23 copies of my book were purchased online in England, and that ABC News had published a chapter viewable internationally on its Web site. Amazingly, this convinced London’s High Court to let the case proceed. English libel law originated to protect thin-skinned lords from 19th-century gossips. Today it makes London the libel capital of the world, an international destination for “libel tourists” who, because of the Internet, can sue almost anyone for spreading alleged mistruths in England. The country has been the venue for lawsuits by McDonaldﾒs (against environmentalists), filmmaker Roman Polanski (against Vanity Fair), and a Rwandan genocide suspect (against Human Rights Watch), among dozens of other cases.
The lure of the Union Jack is explained by where the burden of proof falls. High-profile accusers in America need to demonstrate that a statement about them was not only wrong but also that the defendant knew so and wrote it to cause harm. The English system – and the system in most commonwealthsﾗis flipped, creating conditions that stifle free expression by stacking the deck against writers. As an American citizen, I wouldnﾒt be tried under such conditions. In 2005 a British judge awarded Mahfouz $225,000 by default, and the court ordered me to destroy all copies of my book – in England, the U.S., and everywhere else. I have refused to obey this ruling.
Fortunately, I am no longer an outlaw. When I tried to countersue Mahfouz in New York, I failed for for jurisdictional reasons. But my effort led six states, including New York, to enact legislation – sometimes referred to as Rachel’s Law – that prevents U.S. authorities from enforcing overseas libel judgments that violate First Amendment rights. The Senate Judiciary Committee is currently redrafting a bill that would provide national protections, and there is movement in Britain as well. In late March, the British justice secretary proposed rewriting the laws, and the newly elected coalition government has made libel reform part of its official coalition agreement. But even as political will catches up to the problem in the traditional media sphere, a set of libel questions persists online.
The biggest is whether online chatter – in blogs, on comment boards, through social-media platforms – should be considered the legal equivalent of barroom conversation or published material. If it’s the latter, then any of these ﾓauthorsﾔ could be sued for libel. With the world watching, however, there are signs that British judges are modernizing (and liberalizing) on their own. They’ve thrown out at least three frivolous cases this year, including one against a prominent writer and blogger. Parliament should follow with reforms, and in the meantime Congress should move to protect American writers. Our right to free speech depends on it.
Ehrenfeld is the director of the American Center for Democracy in New York City.