Unlikely Allies Say U.K. Libel Laws Limit Speech
By New York Times International Herald Tribune (Global Edition) | by Eric Pfanner
Monday, May 25th, 2009 @ 1:38AM
PARIS – The American Civil Liberties Union may not often see eye-to-eye with the American Center for Democracy, a research group with neoconservative credentials. But the two organizations are united on at least one thing: their distaste for British libel laws, which they say are being exploited to suppress free speech in Britain and beyond.
British courts have always been friendlier to libel claimants than their U.S. counterparts. Until recently that did not matter much to U.S. authors or publishers. But now the Internet makes anything published in America almost immediately available in Britain, too. American critics say so-called libel tourists – people with little connection to Britain – are using that to justify suing for libel there.
London has gained a reputation as the libel capital of the world ﾗ Saudi businessmen have sued there to complain about American reports that they engaged in terrorist financing; Russian and Ukrainian oligarchs have sued in Britain over allegations of unsavory business activities; Hollywood celebrities have gone to London to seek redress over reports of wayward kisses.
To try to insulate American authors and publishers, groups like the A.C.L.U. and the Center for Democracy have persuaded lawmakers in New York and Illinois to pass state laws that block enforcement of British libel decisions in the United States. Similar bills are advancing in other state legislatures, and stronger measures, allowing American defendants to fight back against adverse foreign libel rulings, have been proposed in the U.S. Congress.
“We really do see this as a First Amendment issue,” said Judith Platt, director of communications and public affairs at the Association of American Publishers, referring to the U.S. constitutional guarantee of free speech. “So many of these cases are undertaken simply to intimidate U.S. authors.”
While the campaign for protection from British judgments has drawn bipartisan support in the United States, persuading Britain to change its approach on libel may be more difficult.
A committee of British lawmakers recently began a review of the countryﾒs defamation rules. But analysts say the government appears to be leaning toward tightening privacy protection, as a way to rein in the tabloid press.
Some British lawyers say the U.S. campaign for new laws, while bringing together strange bedfellows, was being fueled primarily by a desire to air conservative political views, rather than concern over freedom of speech.
As for libel tourism, “I’ve not seen sufficient evidence myself at the moment to suggest that there is a major problem here,” said Jack Straw, the British justice secretary, in testimony to the committee last week.
Critics of British defamation law say it chills free speech in several ways. Defendants have to prove that their published allegations were true, unlike in the United States, where plaintiffs must demonstrate that an author or publisher disseminated false information – and in cases brought by prominent figures, that this was done with serious doubts as to the truth of the reporting.
Also, defendants in Britain face a heavy financial burden. They have to pay their lawyers regardless of whether they win or lose. Libel claimants in Britain, on the other hand, generally sue under “no win, no fee” arrangements. If they win, the defendants often have to pick up the claimants’ costs, too.
Rather than fighting against these odds, many people accused of libel in Britain settle without trials. Or, in suits involving foreign defendants, they simply do not show up.
That is what happened in the case of Rachel Ehrenfeld, director of the American Center for Democracy, who four years ago lost a case that gave rise to the American lobbying campaign.
Ms. Ehrenfeld was sued in Britain by a Saudi businessman, Khalid bin Mahfouz, after she wrote, in a book titled “Funding Evil: How Terrorism Is Financed – and How to Stop It,” that he and members of his family had financially supported Al Qaeda prior to the attacks of Sept. 11. The accusations were found to be without merit by a British judge, who ordered Ms. Ehrenfeld to pay £10,000 each to Mr. Mahfouz and his two sons, and more than £100,000 in legal costs.
Ms. Ehrenfeld contends that the case should never have been allowed to proceed in Britain, given that only about two dozen copies of the book were shown to have been sold there.
Laurence Harris, a lawyer at Edwards Angell Palmer & Dodge in London who represents Mr. Mahfouz, disputed Ms. Ehrenfeldﾒs characterization of her client as a libel tourist, saying he was justified in suing in Britain because of business interests and personal dealings there.
“We don’t think that this book should be seen as a cause celebre for the issue,” he said. “The U.K. has always seen, rightly I think, that if you say something defamatory about someone, you ought to be able to prove it.”
Ms. Ehrenfeld has found supporters in Congress, where Senators Arlen Specter of Pennsylvania and Joseph Lieberman of Connecticut this winter introduced a bill that would allow Americans to countersue for triple damages if a foreign libel suit was “part of a scheme to suppress a U.S. personﾒs First Amendment rights.” A similar bill has been introduced in the House of Representatives, following the passage of a weaker measure in the House last year.
National differences in libel laws have always existed, but the borderless nature of the Internet has increasingly brought them into conflict. In the case of “Funding Evil,” for instance, the first chapter of the book was published on the ABC News Web site, giving it a far wider circulation in Britain than the 23 copies that were sold there, according to the judge who issued the ruling, David Eady.
Britain has started to look into such cases, as part of a broader study of the news media. In April, members of Parliament from the Culture, Media and Sport Committee traveled to New York to interview Ms. Ehrenfeld as well as newspaper editors and media lawyers, asking about differences between U.S. and British approaches to libel, privacy, fact-checking and other journalistic matters.
Marcus Partington, a lawyer for the newspaper publisher Trinity Mirror, told the committee in February that the countryﾒs approach to libel was damaging the reputation of British courts.
“I think it is very regrettable that we are in a situation where one of our chief allies is in a situation where it is taking steps to pass laws because we do not do enough in this country to protect freedom of expression, and to allow libel tourism,ﾔ he said. ﾓI think as a country we should do something to stop that.”
The committee is expected to produce a report on its findings this summer.
Ms. Ehrenfeld, however, is placing her hopes in Congress. If it passes a law authorizing countersuits against foreign libel claimants she plans to go back to court against Mr. Mahfouz, she said.
“I have business to finish,” she added. “I want him to prove that what I have said is not true.”
Categories: ACD in the Media