British courts’ plaintiff-friendly libel system strikes at U.S. protections. After taking in a libel law panel the other night in Beverly Hills, I’m ready to stipulate: Nicolas Cage did not steal a Chihuahua. Britney Spears did not make a sex tape. And Cameron Diaz did not snog (translation later) some MTV producer in the bushes behind Justin Timberlake’s back. We can thank the plaintiff-friendly English libel system for clearing Cage and Diaz of those tabloid charges. Spears tried to get similar satisfaction in America’s courts. But she couldn’t persuade a judge in this country that her reputation was such that an appearance in a sex tape (never proven to exist) would do harm. It’s too easy to poke fun at celebrities trying to protect their names and valuable reputations.
I suppose the English courts deserve some credit for bringing clarity to these matters. But I can’t get warm and fuzzy about a foreign libel system that also provides overweening protection to the reputations of Saudi potentates, Russian tycoons and others in the world’s power elite. London is increasingly the destination of choice for those who don’t like what’s being published, streamed or broadcast about them, even if the offending publication originates in another country, such as the United States.
In the age of the Internet, almost everything that gets published instantly goes global, and that’s enough to land it in a London court, beyond the protections of the U.S. 1st Amendment. Unlike American courts, English libel and privacy law puts the burden of proof on writers, publishers and even nonprofit organizations that report on events such as celebrity eating disorders, organized crime and the funding of terrorism. Even inadvertent, un-malicious errors against public figures can result in heavy judgments and attorneys fees. Merely mounting a defense can be so expensive that some writers settle rather than fight to prove their cases.
New York and Illinois have already passed laws to prevent British courts from extracting libel judgments. California lawmakers plan to consider a similar measure this month, while the U.S. Congress is mulling even tougher legislation that would punish those who brought claims not supportable in American courts. But the most appropriate and effective reform could come from members of Britain’s Parliament, who are coming to America this month to hear arguments for and against the liberalization of their libel laws. Press defenders would particularly like to see the Brits rein in their expansive claim to jurisdiction in seemingly any case. Andrew Thomas, who represents American media outlets, said at Monday’s panel, sponsored by the Variety Group, that reforms were aimed at “trying to prevent the U.K. courts from dictating to the rest of the world that everyone has to abide by what is essentially the least common denominator for freedom of speech.” “Libel tourism” has become something of a cause c￩l￨bre — in large measure because of Rachel Ehrenfeld, an American whose 2003 book, “Funding Evil: How Terrorism Is Financed and How to Stop It,” alleged that a Saudi businessman supported Al Qaeda in the years before the Sept. 11 attacks.
Sheik Khalid bin Mahfouz sued Ehrenfeld for libel in England, based on the purchase of 23 of her books there via the Internet. Rather than face the high legal costs and burdens of proof in London, Ehrenfeld, a criminologist and researcher,did not contest the case in England and sought protection in American courts. Mahfouz has beaten back many others who have tried to tie him and his family to the support of terrorism, including Cambridge University Press, which destroyed copies and apologized for another book by two Americans, “Alms for Jihad.”
Other writers and Mideast scholars have described what they said is a concerted effort by some wealthy Saudis to use the British courts to scare off research into the funding of terrorism. “These questions about terrorism are of enormous concern and there is no doubt that this litigation has chilled some of that coverage,” said Mark Stephens, an English lawyer who represented Ehrenfeld and wants changes in the nation’s libel law. We fought a revolution, in part, to establish a 1st Amendment protection for the press. That freedom advanced to new heights in 1964 when the U.S. Supreme Court ruled that public figures can win a libel case only if they can prove a publisher knowingly put forth a false statement or did so with reckless disregard for the truth.
The court declared this high standard warranted, in order to assure robust debate and to establish “breathing space” needed for free expression. That sort of wide latitude seems a no-brainer when it comes to reporting on President Obama, Sen. John McCain, business magnates or billionaires like Mahfouz. But puerile tabloid and unsubstantiated blog reports use the same defense for less lofty reporting. Attorney Lynda Goldman told Monday’s panel that the public underestimates how the famous struggle to repair reputations diminished in an instant on the Internet. Goldman helped Cage, who got a British court to issue a ruling that he had not stolen a dog or been arrested for drunk driving — accusations originally made in a Kathleen Turner memoir and repeated in the Daily Mail newspaper.
Her client Diaz won an apology in a London court after the Sun newspaper falsely reported that the movie star had cheated on her boyfriend and had been locked in a “3-minute snog” (read: kiss) with the producer of her cable program “Trippin.” “For some reason in the United States, we have gotten away from the concept that the truth matters,” Goldman said. It’s not that the truth doesn’t matter but that our system correctly values free-wheeling expression. That freedom comes with imperfections that we don’t accept but should understand. Whether we like it or not, deep and significant reporting about national security and government intrigue comes along with the occasional fictitious snog. email@example.com