The U.S. House of Representatives unanimously passed the bill, which now awaits Senate approval. If it becomes law, it will protect American writers from the practice of "libel tourism," where a plaintiff chooses to file a lawsuit in a country with weaker free speech protections.
"Libel tourism threatens to undermine the principles of free speech because foreign courts are not obliged to consider extensive First Amendment privileges in defamation cases," said Rep. Steve Cohen, D-Tenn., one of the two sponsors of the bill. "My bill will prohibit domestic courts from recognizing or enforcing foreign defamation judgments unless the domestic court finds that the foreign judgment comports with our First Amendment."
The bill is based on "Rachel's law," a law passed by the New York State Legislature last May that was created to protect American author Rachel Ehrenfeld from a British court decision against her. Her case has become the center of the fight against libel tourism, which has extended to the United Nations.
In August, the UN's Committee on Human Rights called on Britain to modify its libel law to prevent the use of libel tourism. It said that Britain's libel law is discouraging scholars and journalists from publishing their work and "stifling free speech around the world," reports the Belfast Telegraph.
The practice of libel tourism has become common in Britain where free speech laws are still based on common law. It puts the burden of proof on the writer to prove that their statements are true, whereas most other countries' require the plaintiff to prove the statements are false.
Many non-British authors and media outlets have been sued in Britain because of its free speech laws. There are law firms in London that specialize in libel lawsuits involving foreigners, often filed by celebrities or Russian and Saudi billionaires. It is the Saudi billionaires who are receiving the most attention, as their lawsuits are often intertwined with the war on terrorism.
Khalid bin Mahfouz has become the face of libel tourism, filing more than two dozen libel suits in Britain. He has received large settlements and apologies from publishers, and forced books that are critical of him to be removed from circulation. Even the threat of legal action has persuaded some publishers to pull books from circulation. Cambridge University Press pulled copies of "Alms for Jihad" after their lawyers warned that bin Mahfouz would sue. A list of bin Mahfouz's legal actions can be found on his Web site.
Rachel Ehrenfeld, author of "Funding Evil: How Terrorism Is Financed and How to Stop It" was sued by bin Mahfouz after she alleged in her book that bin Mahfouz had financed terrorist organizations, including al-Qaida. It was published in New York and the majority of copies were sold in the United States, though at least 23 copies were purchased in Britain through the Internet.
Bin Mahfouz filed a lawsuit in Britain. Ehrenfeld refused to appear before court, feeling that "bin Mahfouz' success in a libel case against me was all but preordained." The judge declared a default judgment, ordering Ehrenfeld to apologize, pay $225,000, and destroy existing copies of the book. Ehrenfeld refused, taking her case to courts in New York where the State Legislature took up her cause.
The practice of libel tourism and the action of British courts have been widely criticized for restricting free speech worldwide and creating a "chilling effect" on publishers who fear lawsuits. "It has not only affected me," said Ehrenfeld to the International Herald Tribune. "Publishers are also afraid to mention any Saudi financier of terrorism, even if the evidence is there. The intimidation factor has worked very well to silence the media."
The British media is concerned that its courts are being used to promote censorship. "[L]ibel tourism has the potential to turn English courts into censorship enforcement agencies for litigants with secrets to hide and money to burn," writes Tim Luckhurst in The Guardian. "It poses a wholly unacceptable threat to academic freedom and freedom of speech."
Libel tourism is defended as a method to discourage defamatory and irresponsible reporting. Trevor Asserson, a British lawyer who has represented foreign plaintiffs in libel suits, told The Chronicle of Higher Education, "One person's freedom to speak is another person's freedom to be defamed. One has to strike a balance, and that's what the law tries to do."
Even Michael Ledeen of the American Enterprise Institute for Public Policy Research, an ardent supporter of the bill in Congress, believes that America has an "almost impossibly high bar for libel," leaving "those of us who are regularly slimed … to ignore it, or fight it out in public fora."
The bill has been widely praised in the United States for protecting American free speech beliefs from foreign law. In a New York Times editorial, Adam Cohen writes, "'Libel tourism' is a threat to America's robust free-speech traditions, which protect authors here. If foreign libel judgments can be enforced in American courts, there will be a 'race to the bottom'; writers will only have as much protection as the least pro-free-speech nations allow."
Some, including Cohen, think the bill does not go far enough. There was a second libel tourism bill, sponsored by Rep. Peter King, R-N.Y., that allowed defendants to counter-sue; it has yet to be voted upon, however. Writing in the New York Post, King explained that the ability to countersue was needed to discourage these suits from being filed. "That will make potential litigants think twice before they try to exploit foreign libel laws against American authors and publishers," he wrote.