Americans deserve immunity from ‘libel tourism’ The Senate Judiciary Committee recently concluded during a hearing on the Free Speech Protection Act (S.449) on Feb. 23 that “foreign libel lawsuits are chilling Americans’ First Amendment rights.” The Free Speech Protection Act provides protection to all U.S.-based authors and publishers from libel judgments in any country that has lesser protection for free speech than the U.S. Constitution. The bill applies only to judgments rendered in countries where the authors do not have sufficient personal or professional ties, and allows for collection of legal fees, and when appropriate, damages from the “libel tourist.”
The committee discussed the possible measures to protect Americans’ rights to “candid commentaryand uninhibited information that our laws are designed to foster and protect,” said the chairman, Sen. Patrick J. Leahy, Vermont Democrat. The billpending in the Senate, and related laws recently passed by some states, have sparked vehement criticism by prominent British figures. They have seized the opportunity to attack the United States, the U.N. Committee on Human Rights and me. A recent speech by a former senior judge of the Appellate Committee of the House of Lords, Lord Leonard Hoffmann, expressed strong opposition to the U.S. legislation. He also attacked the U.N. Human Rights Committee’s finding in July 2008 that British libel laws, especially those that facilitate libel tourism, are chilling free speech worldwide.
Libel tourism is a phenomenon in which foreign claimants exploit plaintiff-friendly defamations laws to sue authors and publishers in countries in which they have not worked or published. Lord Hoffmann’s personal attack on me seems like an effort to silence demands by British free-speech proponents to change British libel laws. These efforts followed my very public fight to stop British libel laws from infringing on my free-speech rights guaranteed by the U.S. Constitution.
My story began when Saudi billionaire Khalid bin Mahfouz sued me for libel in London in 2005. By last summer, when he passed away in Saudi Arabia, Mahfouzhad bullied more than 40 publishers and authors, including many Americans, into publishing apologies and retractions, then posted his “victories” on a dedicated Web site. Since no one would take on a Saudi billionaire in the plaintiff-friendly British court, Mahfouz never had to address the merits of the allegations against him in an adversarial proceeding. Most often, he did not even have to litigate. Mere threats of suit sufficed to deterall publication of his and others’ alleged terrorism financing.
I refused to acknowledge the jurisdiction of the British court over my case, which resulted in a default judgment against me. As a result, I petitioned federal court in New York to declare the British judgment unenforceable. The court ruled that it lacked jurisdiction over Mahfouz, but acknowledged the important relevance of my case to First Amendment rights. In reaction to that judgment, the New York Legislature promptly passed the Libel Terrorism Protection Act in May 2008. Similar laws have been enacted since in Illinois, California and Florida, andare pending in Maryland, Utah and Arizona.
However, these provide only patchwork protection to authors and publishers in other states. In his attack against the pending legislation in the United States and proposed reforms in the United Kingdom, Lord Hoffmann noted irrelevancies such as my birthplace – Israel – and that I have “firm views on the Palestinian question.” Furthermore, he pointed out that I “[consider] the British to be soft on terrorism,” referring to a 2006 article in which I criticized the London Bullion Market Association, for declaring its intentions to provide North Korea with gold. I could go on, but addressing all of Lord Hoffmann’s digressions would be as large a waste of time as his speech, which misconstrues the policy underlining the new U.S. measures.
Contrary to Lord Hoffmann’s claims, the Free Speech Protection Act is not aimed at changing British libel laws or towards imposing “an American legal hegemony … to the financial advantage of publishers in the United States.” It is aimed at safeguarding Americans’ rights to free expression, enshrined in our Constitution. This is why the bill has garnered wide support among free-speech organizations and the media in the United States. The growing demand for change has spurred British Justice Minister Jack Straw to concede that British laws “are having a chilling effect” on free expression, not only that of the media. Mr. Straw just appointed a special committee to review the laws to propose appropriate modifications.
In the meantime, the British Parliament’s Culture, Media and Sport Select Committee, which investigated the problem for several months recommended some technical changes to the United Kingdom’s libel laws, but wrongly concluded that the U.S. Congress’ pending legislation is a “retaliatory step” against the British courts. Far from it. America’s Founding Fathers rebelled against the oppressive and suppressive policies of the British crown in 1775. More than 200 years later, we are faced with the opportunity and the obligation to prevent further encroachment on our rights of freedom of expression, not only from England. With the passage of the Free Speech Protection Act, the Senate will meet this responsibility.
Rachel Ehrenfeld, author of “Funding Evil” (Bonus Books, 2003),is director of New York-based American Center for Democracy.