In June last year I wrote on the situation of Rachel Ehrenfeld, who was landed with a default libel judgment against her at the High Court in London. Dr. Ehrenfeld had decided not to attend the hearing for libel, pertaining to statements she had made in her book: "Funding Evil: How Terrorism is Financed and How to Stop it". The ruling against her was made by High Court judge, Mr. Justice Eady. As British lawyer Mark Stephens wrote in the London Times, her book was "unobjectionable by American libel standards."
The vast differences between British libel law and American libel law means that several authors and publishers whose work was aimed at an American market have been sued in Britain. Under UK libel law, the defendant is presumed guilty and must prove innocence, a reversal of the tired cliché that one is "innocent until proved guilty." Additionally, under UK law there is no duty to show that the defendant acted "with malice," as there is in the US.
Rachel Ehrenfeld was ordered to pay £10,000 in damages to Sheikh Mahfouz, and the same to each of his two sons, who also claimed in the suit that they had been defamed in her book. That figure was nothing compared to the costs that Judge Eady ordered her to pay. In all, she was saddled with a bill of $225,000, a sum she refused to pay.
The book had not been published in Britain, but she was sued by Saudi billionaire Khalid Salim A. bin Mahfouz on account of the 23 books that had been bought on the Internet. In Manhattan, where Mahfouz claimed he had no financial business, his representatives tried to serve orders onto Dr. Ehrenfeld, attempting to make her pay the amount ordered in Britain.
Dr. Ehrenfeld counter-sued in New York, claiming that Mr. Justice Eady's order was inapplicable, as UK libel law contradicts American Constitutional protections on 15 different points. In 1997, a precedent was set in Maryland where Vladimir Matusevitch successfully argued that a UK libel ruling, favoring Vladimir Telnikoff and demanding that Matusevitch pay him £65,000, was invalid.
Traditionally, under the principle of "comity" (courtesy and reciprocation), libel awards issued abroad are usually acknowledged in the U.S. "Comity" is more concerned with international or inter-state diplomacy than being a binding aspect of law, and is not applicable if a judgment is "repugnant" to state or national law. In the case of Matusevitch v. Telnikoff (347 Md. 561, 598, 702 A.2d 230, 248) it was agreed by the Court of Appeals in Maryland that UK libel law ran counter to state law and also the First Amendment of the U.S. Constitution.
Dr. Ehrenfeld's lawyers argued in the U.S. District Court for the Southern District of New York that attempts by bin Mahfouz to make her pay the sum requested under UK law were unenforceable. The case of Matusevitch v. Telnikoff was cited. Additionally, as agents for bin Mahfouz had tried to serve her with notices to pay in the state of New York, it was argued that Mahfouz should be subject to "personal jurisdiction." This suit was rejected on April 25, 2006 by Southern District Judge Richard Conway Casey, on the grounds that a prima facie case for personal jurisdiction over bin Mahfouz had not been made.
Jurisdiction would have opened the way for "jurisdictional discovery." Discovery allows for an examination of a defendant's finances, etc., as stated in 1996 in relation to federal law: "A plaintiff faced with a motion to dismiss for lack of personal jurisdiction is entitled to reasonable discovery lest the defendant defeat the jurisdiction of a federal court by withholding information on its contacts with the forum."
The case (06-2228-cv) was brought in November 2006 before the United States Court of Appeals for the Second Circuit, where it was heard by Judges Wilfrid Feinburg, Pierre N. Leval and José A. Cabranes.
On June 8, 2007, Judge Feinburg wrote:
"Because of the absence of authoritative state court precedent regarding the jurisdictional question raised under N.Y. C.P.L.R. §302(a)(1), the fact that the answer may resolve this litigation, and, most of all, the importance of the question, its policy implications for the State and the likelihood that the question will recur, we hereby respectfully certify the following question to the New York Court of Appeals: Does §302(a)(1) of New York's long-arm statute confer personal jurisdiction over the defendant? The certified question may be deemed expanded to cover any further pertinent question of New York law involved in this appeal that the Court of Appeals chooses to answer."
In December 2007, Judge Carmen Beauchamp Ciparick at the New York Court of Appeals ruled that the statute did not cover the issue of personal jurisdiction. However, in her 17-page ruling she did state that "libel tourism" was the subject of growing controversy, with some viewing it as an attempt to "chill free speech." She stated: "Our task is to interpret the New York statute as written. Thus, plaintiff's arguments regarding the enlargement of CPLR §302(a)(1) to confer jurisdiction upon 'libel tourists' must be directed to the Legislature."
A bill was introduced to the New York senate, called the Libel Terrorism Protection Act. On February 27th, the bill cleared the Assembly's Judiciary Committee and was submitted to the Codes Committee. This bill, directly inspired by the case of Rachel Ehrenfeld, could become part of state law by the end of March.
The Libel Terrorism Protection Act was introduced in January by Democratic Assemblyman Rory Lancman and Republican Senator Dean Skelos. It has the backing of Floyd Abrams, an expert on the First Amendment.
Abrams explained to the New York Law Journal that the bill has moved exceptionally quickly in Albany as:
"It has brought together two propositions that have widespread support: There is considerable support, if not total support, for the notion that First Amendment rights should be protected. There is total support for the notion that when an American writes a book about terrorism, she shouldn't be dragged around the world to defend herself and then find herself with a foreign judgment that is enforceable here."
If, as seems likely, the bill becomes part of New York state law, it would amend the long-arm statute Civil Practice Law and Rules §302, and could render foreign courts' judgments unenforceable. Additionally, it would allow state courts to gain jurisdiction over a libel plaintiff who has a foreign ruling made against anyone with sufficient ties to New York State.
The enactment of such a law raises several other questions. Is the principle of "comity" still valid in relation to British libel cases which are blatantly against the principles of the First Amendment? If so, is there not a case to extend such legislation to ensure that any and all U.S. states have such protections?
Additionally, the "special relationship" between Britain and America is under enough strain as it is, with the current UK administration unilaterally deciding to pretend that there is no such thing as "War on Terror." Britain's Home Secretary Jacqui Smith, who has responsibility for terrorism legislation and ultimate authority over the actions of intelligence agency MI5, recently strained the boundaries of credibility by declaring that Muslim terrorism should be called "anti-Islamic activities."
Sharing of intelligence has been a hallmark of the "special relationship" since the days of Churchill. Although intelligence is by its nature not necessarily in the public arena, the situation where authors cannot repeat in Britain statements on terrorism and terrorism funding that can be read by anyone in the United States sets up an alarming scenario. The British government has already lied to its people about "extraordinary rendition," deepening a sense of mistrust in the "special relationship."
Future shared actions against terrorism must happen with the approval of the public in both countries. As U.S. Homeland Security chief Michael Chertoff has already noted, one of the biggest threats to American security is posed by the sheer number of Muslim radicals running free in Britain, particularly those of Pakistani origin.
Part of the pact between the government and people in a free society involves freedom of speech and freedom of information. The actions of Khalid bin Mahfouz are personally motivated, to clear his name of what he claims to be slurs. However, the manner in which libel case law has been carried out in Britain regarding allegations of terrorism funding has had a dramatic effect upon bona fide authors. These authors are a bridge between the U.S. government and its people, placing valuable information into the pubic arena. Britain's indefensible libel law, which presumes guilt of the defendant in clear breach of basic jurisprudence in a free society, is acting as a deterrent to U.S. authors and publishers, preventing them from dealing with "sensitive" issues which still do not contravene U.S. libel law.
In Britain, where we have ridiculous government statements about "anti-Islamic activities," there is a crucial need for information on terrorism to be factually presented to a public that is spoon-fed with a diet of politically correct government lies and disinformation. As a researcher based in Britain, I am continually frustrated as books on terrorism are pulped or prevented from being sold here, as U.S. authors and publishers are placed in a position of fear.
The latest high-profile casualty of Britain's libel legislation is a book by the reputable Cambridge University Press. The book Alms for Jihad by J. Millard Burr and Robert O. Collins was originally published in 2006. It discusses the issues of the financing of terrorism. As Khalid bin Mahfouz was mentioned on 13 occasions in this tome, it became subject of a libel action, even though J. Millard Burr had said that at no point was Mahfouz labeled as a terrorist in the book.
Robert O. Collins has written:
"Millard Burr and I had adamantly refused to be a party to the humiliating capitulation by CUP and were not about to renounce what we had written. Alms for Jihad had been meticulously researched, our interpretations judicious, our conclusions made in good faith on the available evidence. It is a very detailed analysis of the global reach of Islamic, mostly Saudi, charities to support the spread of fundamental Islam and the Islamist state by any means necessary. When writing Alms for Jihad we identified specific persons, methods, money, how it was laundered, and for what purpose substantiated by over 1,000 references. I had previously warned the editor at CUP, Marigold Acland, that some of this material could prove contentious, and in March 2005 legal advisers for CUP spent a month vetting the book before going into production and finally its publication in March 2006."
Bin Mahfouz has a page on his website in which he lays out the results of his litigation against publishers and individuals whom he claims have libeled him. A letter of apology from Cambridge University Press, dated July 30, 2007, is also on the website.
Following the order for the book to be pulped, and after CUP wrote to libraries around the world asking to remove existing copies from shelves, Alms for Jihad became a collector's item. Copies now change hands for increasingly higher prices.
The claims made in Alms for Jihad are hard for me to discuss, partly because British High Court Judge Mr. Justice Eady ordered all existing copies destroyed, but also as a British citizen I am wary of being sued for libel. There used to be certain parameters within which British libel law functioned in ways that were understood, based on precedents from earlier cases. Defendants in libel suits could lay claim to these precedents to escape judgments of libel or to ensure, as Cambridge University Press thought it had, that anything published would not fall foul of the law.
The British Broadcast Journalism Training Council produced a set of guidelines in a Powerpoint presentation. Judge David Eady has basically reinterpreted the law on libel in Britain, so that those guidelines are now meaningless. One of the defenses listed by the BJTC was that of "qualified privilege," deriving from the 1999 case of former Irish PM Albert Reynolds (Reynolds v Times Newspapers Ltd ( 2 AC 127).) Qualified privilege referred to "responsible journalism" and in 1999 Lord Nicholls of Birkenhead laid out 10 criteria by which this should be judged in future defamation or libel cases.
Even when no libel has been committed, Eady has created a situation where a person can have a judgment made against them under libel law.
Judge Eady and the Abuse of Law
Libel, by usual definition, means "the publication of a statement in some permanent form (including broadcasting) which has the potential to damage someone's reputation and which is claimed to be false." In some of Mr. Justice Eady's recent rulings, libel has been declared where a journalist has not followed a "procedure" of disclosing information to a subject of an article. Eady became a High Court judge on April 21, 1997.
Take the case of George Galloway, British politician. It had long been rumored that Galloway was being paid by Saddam Hussein to argue against the international embargo, though this had never been proved. When documents were found in Iraq which suggested Galloway had been paid, the Telegraph newspaper ran a five page story on April 21, 2004. The newspaper was ordered to pay £150,000 to Galloway. In addition, it had to pay £1.2 million in legal costs. The newspaper appealed against the decision, but on January 25, 2006, the Court of Appeal upheld the ruling of Judge Eady.
Even after the appeal, Sir Philip Mawer, the Parliamentary Commissioner for Standards wrote: "It is important to note that the court proceedings involving Mr Galloway and Telegraph Group Limited do not imply a finding one way or the other on the truthfulness of the allegations against Mr Galloway."
Surely, in a case of libel, the truth or falsity of allegations should be made plain? Not under UK libel law. Mr. Justice Eady in the original trial made his judgment not on whether or not documents claiming Galloway was paid by Saddam were true, but upon whether Galloway had received sufficient time to respond to the allegations before they were published. The other points made by Eady are discussed here.
In December 2006, Eady issued an order banning newspapers reporting a true story by a cuckolded man that his wife was having a sexual affair with a famous soccer player. The soccer player had sought the "gagging order," and argued that the publication of the truth of his adultery would have made reconciliation with his wife difficult.
Since 1998, and the passing of Britain's Human Rights Act, all UK law must be compatible with the 1950 European Convention of Human Rights (ECHR). Article 8 of this convention upholds the right to have one's private life respected, but Article 10 of the same document maintains that there must be freedom of information. Eady has been accused of using this European legislation to create his own version of a "privacy law."
In 2005, Eady supervised a trial in which Roman Polanski sued American magazine Vanity Fair for libel. Polanski has directed some fine films, but in 1977 in California he was convicted of having sex with a 13-year-old girl. Rather than face punishment, Polanski fled to France. In 2002, Vanity Fair mentioned that shortly after Polanski's pregnant wife Sharon Tate was murdered by Manson's "family" in 1969, he propositioned a woman on his way to his late wife's funeral. Unable to set foot in Britain, lest he be extradited to the United States, Polanski chose to act as a "libel tourist" in Britain. Bizarrely, the director pursued this case of libel via a video-link from Paris, even though he is a convicted sex offender who has avoided punishment. Polanski won a £50,000 award against Vanity Fair.
Graydon Carter, Vanity Fair's editor, wrote in September 2005: "I find it amazing that a man who lives in France can sue a magazine that is published in America in a British courtroom." This is the folly of UK libel law. Anyone can play, even if the publication is not a British publication, as long as the plaintiff has the money to pursue a case.
Polanski's lawyer Richard Spearman had earlier argued to the House of Lords that: "This leaves the case in a mess and a situation where a defendant can get away with libel scot-free." The case was allowed to happen on the grounds of Polanski's "human rights," even though it bypassed the human rights of the 13-year-old girl with whom he had had unlawful sexual intercourse.
Despite personalized and valid criticisms of Judge (Sir David) Eady, British law has been condemned by the European Court of Human Rights in Strasbourg. This happened in a ruling on a libel case that took 15 years to be completed. In February 2005 this court ruled that British law breached the right to fair trial and freedom of expression. Only in exceptional circumstances are any defendants in libel trials offered legal aid funds that are automatically considered for defendants in criminal trials. In libel trials involving non-UK residents, there have never been any awards of legal aid to assist them with their defense cases.
In today's globalized world, where articles can appear on the Internet and books can be purchased on the Web in countries where they are not originally published, it is important that the principle of "comity" is based on full reciprocity of legislation. Britain's libel laws do not in their present state uphold for the defendant the same protections as the First Amendment does for American citizens. Few British citizens can afford to pursue their own libel lawsuits, and for those who are accused of libel the costs of defending oneself are punitive.
It should be imperative that the UK libel laws in their present form be abolished. If it is not replaced entirely or subjected to a root and branch reform, it will create a situation where American non-fiction authors will not even be published in their native country. As UK law now stands, they can easily be prosecuted by "libel tourists" in Britain, based upon only a handful of copies being made available in Britain. The current situation is an encouragement for authors and publishers to self-censor or avoid discussing certain issues which would otherwise be in the "public interest".
Another leading expert on al Qaeda's terrorism funding, Jean-Charles Brisard, was ordered by Mr. Justice Eady to pay £10,000 in damages to Sheikh bin Mahfouz in 2004. This related to a report written on December 19, 2002 and submitted to the UN. Jean-Charles Brisard and his two companies JCB Consulting and JCB Consulting International did not appear to defend themselves.
Jean-Charles Brisard was the co-author with Guillaume Dasquie of a 2001 book entitled La Verite Interdite (The Forbidden Truth) which was again subject to a defamation case brought by Sheikh Mahfouz. This case, supervised by Mr. Justice Gray, concluded on May 25, 2006. The authors were ordered to pay £10,000 in damages and were made to issue an apology, but the costs of defending the case were high.
In a personal communication to me, Jean-Charles Brisard has written:
"What I can say about the UK libel law is that the strict liability confines to the absurd. Law is supposed to be general, while in the UK anyone can be sued with little chance to defend himself on facts that would, in any other jurisdiction in the world, be considered insufficient to even raise a case in Court (eg. the sole fact of obtaining ten copies of a book from London on the Internet). The absurd in my case led for a British judge to determine that, although I had expressly refused by a publishing contract the selling of my book in the UK, I was nevertheless responsible for the libel contained in my book in the UK.
Although such a judgment was in contradiction with the European Court of Human Rights rulings that no one can be responsible for something he specifically refused, the UK case led to an award of damages and lawyers' costs of the plaintiffs, totaling one million dollars, and this again based on 10 books bought in the UK and while UK was specifically excluded from the selling territory of my book.
I had no access to legal assistance, as this service is specifically excluded for civil libel actions.
Changing the UK law is not only necessary, it is an imperative for UK to comply with the most basic human rights."
Rachel Ehrenfeld has told me:
"The British Libel laws repress free speech. But Judge Eady's interpretation turned them into a successful weapon in the hands of those wishing to prevent responsible reporting on issues of national security concerning the U.K., the U.S. and the West.
Last October, when five Law Lords overturned Eady's judgment in Jameel v. the Wall Street Journal Europe, Lord Hoffman "dressed down" Eady for his misinterpretation of the law. Not surprisingly, the Independent and other newspapers described Justice Eady 'as a threat to a free Press.'
It seems that the British media could and should more forcefully demand free speech rights. However, removing Justice Eady from the bench, until those changes take place, would provide U.K. and the Western media more freedom to responsibly report the news."