THE House of Representatives last month passed a bill to prohibit the recognition and enforcement of certain foreign defamation judgments. The Senate is expected to take it up soon. Yet the bill (HR 6146) is only a step in the right direction: It doesn’t do enough to combat “libel tourism.” “Libel tourism” is the practice of litigants seeking out foreign courts whose libel laws are more favorable to plaintiffs than US law – in particular that don’t provide the full free-speech protection enshrined in our First Amendment. Problem is, to truly solve this problem, we need to do more to deter “libel tourists” from filing these lawsuits in the first place.
Specifically, we must allow authors, journalists and publishers who’ve been victimized by these overseas lawsuits the ability to counter-sue here in the United States. That will make potential litigants think twice before they try to exploit foreign libel laws against American authors and publishers. To that end, I introduced The Free Speech Protection Act (HR 5814) earlier this year; its Senate companion (S 2977) is sponsored by Sens. Arlen Specter and Joe Lieberman.
This would not only bar the enforcement of these outrageous judgments, but also allow US persons to bring a federal cause of action against any person bringing a foreign libel suit if the writing does not constitute defamation under US law. My bill also allows for expedited discovery and would award damages to the US person who brought the action in the amount of the foreign judgment – plus the costs related to the foreign suit and the harm caused to the victim’s opportunities to publish, conduct research or generate funding. More, it would award treble damages if the person bringing the foreign lawsuit intentionally engaged in a scheme to suppress First Amendment rights.
Nothing in my bill would limit the rights of foreign litigants who bring good-faith defamation actions to prevail against journalists and others who have failed to adhere to standards of professionalism by publishing false information maliciously or recklessly. It does, however, try to discourage those foreign suits that aim to intimidate, threaten and restrict the freedom of speech of Americans. “Libel tourism” must be stopped: It threatens not only Americans’ First Amendment freedom of speech but also their ability to inform the general public about security and existential threats.
Consider the case of Rachel Ehrenfeld, a US citizen and director of the New York-based American Center for Democracy, whose 2003 book, “Funding Evil: How Terrorism is Financed and How to Stop It,” was published solely in the United States by a US publisher. The book alleged that a Saudi billionaire, Khalid bin Mahfouz, and members of his family financially supported al Qaeda in the years preceding the 9/11 terrorist attacks. Mahfouz sued Ehrenfeld for libel in England, because there a libel plaintiff doesn’t have to prove falsity or actual malice, as US law requires. Ehrenfeld lost the case (by default) – and then sought to shield herself from enforcement of the British judgment against her by getting a declaration from a federal court that her book did not create liability under American law.
But jurisdictional barriers prevented the New York State Court of Appeals and the Second Circuit Court of Appeals from acting. Later, New York’s Legislature unanimously passed (and the governor signed into law) the Libel Terrorism Protection Act, commonly referred to as “Rachel’s Law.” But a New York law can’t protect the rights of all Americans – hence the need for Congress to act. Yet HR 6146 doesn’t put an end to the problem of “libel tourism,” because it doesn’t provide a deterrence from these suits being filed in the first place. It is my hope that we can have congressional hearings on this important issue next year, so that all of us who worry about “libel tourism” can join to craft a consensus bill that will solve this problem once and for all. Peter King (R-Long Island) is a member of the US House of Representatives