Facing growing threats to free speech across the West from what's called "libel tourism," lawmakers in Washington and London are beginning to awaken to propose legislative remedies.
Their response is long overdue.
Libel tourism is the practice by which the subjects of critical books or articles – such as Arab billionaires who allegedly finance terrorism – sue for libel in jurisdictions where they will likelier win, such as Great Britain, than in those with stronger free speech protections, such as the United States.
In today's interconnected world, where the written word spreads across borders not just in books and articles but via the web, a libel suit in Great Britain has a cascading effect across the West.
That is, what's written in the United States but sold in Great Britain can subject a writer – or the publisher that carries the writer's words – to a libel suit. That, in turn, can have either of two unfortunate results: 1) prompting the writer to find a less financially troublesome line of work, or 2) reducing the number of outlets willing to publish his or her work.
The signature case of libel tourism involves Rachel Ehrenfeld, director of the New York-based American Center for Democracy and the author of several books, most notably in this context the 2003 work Funding Evil: How Terrorism is Financed and How to Stop It.
In it, she accused Saudi businessman Khalid bin Mahfouz of financing terrorism. The book was not published in Great Britain but, because 23 books were sold there over the Internet, Mahfouz filed suit there.
From the standpoint of libel law, Mahfouz's strategy made eminent sense. Unlike the United States, where the burden of proof in libel law falls on the plaintiff, the opposite holds true in Great Britain, where the burden falls on the writer to prove that what he or she wrote is true.
Ehrenfeld disputed the charge but, rather than fight a costly battle, she chose not to contest it. The court awarded Mahfouz a $225,000 settlement that he could try to collect in the United States.
It was hardly Mahfouz's only success. Through the mere threat of filing suit against his critics, he has, according to Ehrenfeld, obtained and boasted about settlements and apologies in nearly 40 cases.
In response, New York State enacted "Rachel's Law," enabling New York writers to ask their state's courts to declare libel judgments unenforceable if they come from countries with weaker First Amendment protections than America's. Illinois has since enacted its own such law.
Advocates, however, know they need a federal law, not a patchwork of state laws, to truly protect U.S. writers. Last week, the House Judiciary Committee's Commercial and Administrative Law Subcommittee gathered to hear testimony from Ehrenfeld and other experts.
How, precisely, federal lawmakers should respond to the problem is a matter of some dispute.
Last year, the House approved legislation, sponsored by the subcommittee's chairman, Tennessee's Steve Cohen, to provide the same protection at the federal level as Rachel's Law provides in New York.
Senators Joseph Lieberman and Arlen Specter and U.S. Rep. Peter King, however, want to go farther – enabling writers to sue for damages in the United States in cases in which accusers have brought claims of libel in foreign courts that would not pass muster in U.S. courts.
Across the Atlantic, critics of libel tourism in Britain's parliament are beginning to stir as well.
In December, three influential Members of Parliament called for an overhaul of British libel laws.
In the House of Commons, senior Labor Party Member Denis MacShane called libel tourism "an international scandal" and "a major assault on freedom of information," and he charged lawyers and courts with "conspiring to shut down the cold light of independent thinking and writing about what some of the richest and most powerful people in the world are up to."
Justice Minister Bridget Prentice promised to consider stronger protections for defendants in libel cases. A parliamentary committee plans to study the issue. Its chairman, John Whittingdale, said a large number of concerned individuals have submitted materials to his panel.
But interest is one thing, action another. New laws are hardly a done deal in London or Washington. Free speech advocates will have to work hard to push the needed changes to enactment.
They have not a minute to waste. At stake is the free flow of information about terrorism that could prove vital to national security.