The most relentless opponent of freedom of speech in England is not MI5, the Downing Street press office or Muslim Council of Britain but a sombre lawyer, whose colleagues can’t remember the last time he cracked a joke. Mr Justice Eady has found against reporters so often that the Law Lord, Lord Hoffman, slapped him down being ‘hostile’ to responsible journalism in the public interest. He is single-handedly inventing a right to privacy – even though no such right existed in the common law – and assorted celebs are grateful for his efforts.
Every now and again, the wider public notice the stifling atmosphere in the High Court. Eady was widely ridiculed when he granted a gagging order to a prominent figure in the sports world who had had an affair with another man’s wife. The judge insisted that on account could the husband reveal the adulterer’s name to the media – a novel ruling which meant that for the first time in the history of human affairs men had ‘a duty of confidence’ to adulterers who bed their wives.
But it’s not randy sportsmen who are going to place Eady under unprecedented scrutiny but the Eye’s old friend Sheikh Khaild bin Mahfouz. As we reported in the last issue, the Saudi plutocrat has used the English libel courts to punish authors who repeat the claim by the US Treasury that his charity funded terrorism – a libellous allegation, he says, because he was not involved in the running of the charity. Among the many books he has gone to law over is, In 2004 he sued Dr Rachel Ehrenfeld, the author of Funding Evil How Terrorism is Financed and How to Stop it and Eady duly ordered Ehrenfeld to apologize, retract and pay bin Mahfouz $225,913 in costs and damages.
What was breath-taking was not Mahfouz’s victory, he’s had many of those as the Eye explained in the last issue, but that Eady agreed to hear it all. Ehrenfeld is an American and Funding Evil was published by an American house. There was no British edition and no promotion of the book in Britain. If he had sued in America where freedom of speech is respected and public figures can’t win unless they can prove that an author acted with a reckless disregard for the truth, Mahfouz would have lost. Instead of going to law, they fight their critics before the court of public opinion Eady allowed him to sue in Britain where the presumption of guilt falls squarely on the defendant’s shoulders because copies had been brought over here via Amazon – 23 copies to be precise. Eady worked on the assumption that Mahfouz was a well thought-of man with a good reputation to lose even though the Saudi had been caught up in the BCCI banking scandal and paid a fine of $225 million, and as part of the settlement with the US authorities. He then found for Mahfouz’s favour though the court hadn’t heard Ehrenfeld’s defence – the first ever declaration of falsehood in a case that had not been contested by a judge and jury. She refused to leave America because as ‘a matter of principle to submit to a legal system less protective of free speech than our own.’
Now she’s fighting back. A brief submitted by her lawyers to the Court of Appeals of the State of New York ask the judges to declare that Eady’s judgements are enforceable in the US. It describes Mahfouz a ‘serial libel tourist’ a part of ‘mounting and insidious trend when a person, usually prominent and wealthy heads to London’ to exploit an authoritarian law. The American press is on Ehrenfeld’s side. The veteran reporters Mark Hosenball and Michael Isikoff cite the combination of Saudi money and English judges as a potent threat to investigative journalism. They fear that if Eady isn’t challenged US publishers a climate of fear will develop and American publishers will refuse to hard-hitting books on the Internet for fear they might reach England. Ehrenfeld describes in her brief how Mahfouz’s agents told her and her publishers that they must destroy all copies of the book. On one occasion she alleges that a man came to her home in New York who told her, ‘You had better respond. Sheikh bin Mahfouz is a very important person and you ought to take good care of yourself’. Somewhat bizarrely, for a foreigner who brought a case in London against a book that hadn’t been published in Britain, Mahfouz will argue that the US courts don’t have the jurisdiction to hear the case.
If Ehrenfeld wins, libel lawyers will lose a lot of money, and British publishers may consider printing controversial books in the US. If she loses, libel lawyers will become richer still as ever more billionaires flock to London to ask Mr Justice Eady to control what is said about them, not just in England, but across the world.