Statement At Hearing On California Libel Tourism Act (Senate Bill 320)
By California State Senate Judiciary Committee, Sen. Ellen Corbett (Chair) | by Dr. Rachel Ehrenfeld, ACD Director
Monday, April 20th, 2009 @ 5:50PM
Thank you, Senator Corbett, for initiating this important bill, and thank you, members of the Committee, for holding this hearing on Libel Tourism.
California is the world capital of the entertainment industry, which provides major revenues to the state. Yet every creative enterprise produced in California, and every individual writer, director, and producer in California is now at risk of financial devastation at the hands of Libel Tourists. ﾠIn fact, all books, television and movie scripts, fiction and non-fiction, radio shows, web content and even video games, are exposed to this predatory legal action from abroad.
Libel Tourism is a pernicious and growing phenomenon whereby wealthy and corrupt terror financiers exploit plaintiff-friendly foreign libel laws and expansive Internet jurisdiction to silence American authors, producers and publishers. Ever since the attacks on America of September 11, 2001, foreign libel laws have become a potent weapon used by the forces of tyranny who seek to undermine our freedom. California’s Libel Tourism Act can stop this invasive silencing of free speech and restore our liberty.
American libel laws are very different from other countries’ laws and strongly protect free speech. In New York Times v. Sullivan, the Supreme Court struck a critical balance between libel actions and a free press guaranteed by the First Amendment. The high court raised the bar for libel plaintiffs to insure our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” Based on that principle, the court declared: “libel can claim no talismanic immunity from constitutional limitations.”
Outside the United States there are no such “constitutional limitations.” In England, The House of Lords explicitly rejected the Sullivan standard. So did the Canadian Supreme Court. Although all forty-one-member states of the Council of Europe submit to the European Court of Human Rights, Article 10 of its charter also rejects the Sullivan standard.
In many countries, journalists can be jailed for criminal libel. Truth is often not a defense: publications can be confiscated; newspapers, film, television studios and broadcast stations can be shuttered; and writers and producers can be heavily fined and forced to publish adverse court orders, and repudiate as false what they know to be true.
I can attest that libel tourism is costly, financially and emotionally. I do not command an army – or control an industry – or have vast wealth – or hold political office. In other words, I do not possess any traditional sources of power in society. Instead, I write. I am a scholar dedicated to expose the enemies of freedom and Western democracy. I expend great time and effort tracking down information across the globe. My books and articles are based in large part on evidence presented to Congress, parliaments and courts. Like most responsible scholars, I publish only material that can be verified. My credibility and livelihood depend on it.
In 1992, I published Narco-terrorism: How Governments Around the World Have Used the Drug Trade to Finance and Further Terrorist Activities, and first called attention to the intimate relationship between drug trafficking and terrorism.
Terrorism is not cheap. On the contrary, it is a capital-intensive activity. It requires lots of cash for training, weapons, vehicles, salaries, cell phones, airline travel, food and lodging, etc. I showed how the drug trade, not just oil profits, fuels terrorist organizations. While policy makers were romanticizing the Palestine Liberation Organization as “freedom fighters,” I showed how the PLO filled its coffers with billions of dollars from heroin, hashish, airplane hijacking, extortion, and illegal arms sales. Until my book, neither the American government nor international agencies for drug control publicly linked narcotics, organized crime, and terrorism.
When asked why he robbed banks, Willy Sutton famously replied: “Because that’s where the money is.” I followed his lead and followed the money. This led to my second book, Evil Money: The Inside Story of Money Laundering and Corruption in Government, Banks and Business, in which I connected the dots between drug profits, money-laundering, political corruption, Islamic banking, and how illicit funds are used to undermine democracies.
California’s legislature undoubtedly remembers BCCI, the Bank of Credit and Commerce International, a major drug-money-laundering conglomerate and the cash till for Hezbollah, the FARC, HAMAS, Hizballah, and other terrorist organizations. BCCI’s chief operating officer was Saudi billionaire, Khalid bin Mahfouz, banker to the Saudi royal family and, at that time, owner of the National Commercial Bank of Saudi Arabia, the biggest bank in the Middle East.
In 1992, Mahfouz paid $225 million to settle criminal charges against him in New York arising from his control of BCCI. Now, Mahfouz is being sued for hundreds of billions of dollars for funding al-Qaeda’s attack on the U.S. on 9/11, by the victims’ families.
In 2003, I published my third book, Funding Evil, How Terrorism is Financed and How to Stop It. In that book, I showed the true face of terrorism. It is not the stereotype of underprivileged Islamic youth yearning to be religious martyrs, but instead, an international network of corrupt dictators, drug kingpins, and villains like Mahfouz who transferred some $74 million to at least two front charities for terrorism: the International Islamic Relief Organization and his Muwafaq or “blessed relief” Foundation, which then gave the funds directly to al Qaeda, Hamas, and other radical Muslim organizations.
In response, Mahfouz sued me in a British court for libel. Mahfouz does not live in England. I do not live in England. My book was not published or marketed in England. Nonetheless, the English court accepted jurisdiction because twenty-three copies of Funding Evil arrived in England via Internet purchases.
English laws are so friendly to the plaintiff that the Times of London calls London “the libel capital of the world.” Unlike the U.S. libel law, English law does not distinguish between private persons and public figures. Offensive statements are presumed to be defamatory and the libel defendant bears the burden to prove they are true. Official documents from non-English sources are typically inadmissible in court.
In England, protection of opinion is limited and multiple suits are allowed for a single act of publication. Libel defendants have limited pre-trial discovery and no right to depose plaintiffs under oath, as in American courts. Thus, libel plaintiffs usually win, verdicts are substantial, and defendants must pay the plaintiff’s legal fees.
Making the odds against me and other Western publishers and writers even worse is the fact that when the issue is terrorism, the Saudi and Gulf dictatorships refuse to disclose information about their involvement in terrorism against the West. Just last week, U.S. special representative for Afghanistan and Pakistan, Richard Holbrooke complained that funds from individuals in Gulf States such as Saudi Arabia “[provide] financing for Taliban insurgents in Afghanistan.” And a former Treasury official, now at the Washington Institute for Near East Policy, said: “The Saudis are generally reluctant to concede either that there is Saudi-based financial support for terrorism or that Saudi counter-terrorism efforts are inadequate.”
Mahfouz’s threats delivered to me by E-mails, faxes, and legal papers were unsettling. On more than one occasion, I was warned to do as he demanded if I “knew what was good for me” because he has friends in high places who wield great influence in the U.S.
I refused to recognize the English court’s jurisdiction because I should not have to defend myself abroad, and because the cost would have been prohibitive. The British court granted Mahfouz a default judgment. They awarded him hundreds of thousands of dollars and they required me to prevent copies of Funding Evil from reaching Britain, to physically destroy all remaining copies of my book in America, and ordered me to publish retractions drafted by his solicitors.
What happened to me did not occur in a dark backwater of totalitarian repression like Syria, Saudi Arabia or North Korea, but in England. Libel Tourism by Mahfouz and others like him made me realize something more was at stake than my book. I was not the only writer threatened by a Libel Tourist lawsuit; potentially, every writer is. In response, I sued Mahfouz in New York to declare his English judgment violated my rights under the First Amendment. That litigation led the New York Legislature last May to enact the “Libel Terrorism Protection Act” aka “Rachel’s Law.” Illinois followed suit last August.
Until the New York State legislature passed the Libel Terrorism Protection Act, I spent many sleepless nights worried Mahfouz would try to enforce the English judgment against me in New York. His deliberate non-enforcement left it hanging over my head like a sword of Damocles. Though Mahfouz’s suit has never been tried on the merit, the British judgment affected my ability to publish.
I am not the only writer whom Mahfouz has attempted to silence. His website brags about obtaining settlements against more than 40 victims, all writers and publishers who were forced to apologize to him by the mere threat of libel litigation. Mahfouz openly boasts on his website about his power to intimidate and silence his critics in the media and academia using the British libel laws and court.
The result of Mahfouz’s Libel Tourism and that of others of his ilk is a “chilling effect” on free speech. According to Mark Stephens, a prominent libel lawyer in London with a wide international clientele, at least 40 to 50 authors and publishers, including many Americans he advised, opted to cancel books and articles for fear of being sued in England.
The United States has a tradition of almost automatic enforcement of foreign judgments under the doctrine of comity enshrined in the Uniform Foreign Money-Judgments Recognition Act, adopted by a majority of states. Although writers can assert a First Amendment defense to enforcement actions, few have the economic resources to do so.
Hence, Libel Tourism forces them to engage in self-censorship. Mahfouz’s Libel Tourism in London led American publishers with assets abroad to cancel several books under contract or consideration. Those who once willingly courted my work now refuse to publish me.
Case law speaks of the “chilling effect” on free speech threatened by unrestrained libel actions. My case demonstrates the chilling effect is no mere abstraction. I cannot travel to the U.K., lest I be arrested to enforce Mahfouz’s extant judgment, and I run the same risk in Europe, due to the European Community’s reciprocal enforcement of member states’ judgments. Similar laws apply in most Commonwealth states, too.
I close with the immortal words of Justice Brandeis in Whitney v. California:
Those who won our independence believed that the final (end of the state was to make men free to develop their (facilities, and that in its government the deliberative forces (should prevail over the arbitrary …. They believed that (freedom to think as you will and to speak as you think are (means indispensable to the discovery and spread of (political truth …. Believing in the power of reason as (applied through public discussion, they eschewed silence (coerced by law – the argument of force in its worst form. (Recognizing the occasional tyrannies of governing (majorities, they amended the Constitution so that free (speech and assembly should be guaranteed.
A free press is vital not only to our way of life, but also to protect the public by exposing those who do us evil. New York and Illinois have already enacted laws to protect their citizens from the scourge of Libel Tourism which threatens the free expression of the media everywhere.
Without the Libel Tourism Act, every creative enterprise produced in California is at risk of financial destruction at the hands of foreign predators. Thus, the State Legislature must protect California’s writers, producers, and publishers to guarantee the “uninhibited, robust and wide-open” expression the First Amendment was designed to protect. I urge California’s Legislature to pass the Libel Tourism Act without delay, and urge Governor Arnold Schwarzenegger to sign it into law.