After several false starts, it looks like Congress is finally going to address the issue of "libel tourism," an unfortunate practice where foreign plaintiffs pick the jurisdiction with the most draconian libel laws in which to sue.
The Reporters Committee for Freedom of the Press writes that the anti-"libel tourism" bill introduced last year by Senators Arlen Specter, Joseph Lieberman, and Charles Schumer is back under consideration in the Senate. (And judging by information on Govtrack.org, the new bill has already made more headway toward becoming law than last year's version.) Substantively, the bill would prevent courts from recognizing foreign libel judgments that conflict with First Amendment protections for authors. Further, the bill grants authors who lose foreign libel cases to file a counterclaim in the US to seek damages from the foreign plaintiffs.
The Senate bill comes just a week after three members of the House Judiciary Subcommittee on Commercial and Administrative Law met to discuss ways to stymie libel tourism. The Legal Times reports that Representatives Steve Cohen, Howard Coble, and Trent Franks discussed the problem with Rachel Ehrenfeld, the author of "Funding Evil: How Terrorism is Funded and How to Stop It" and the victim of one of the most noteworthy cases of libel tourism.
Ms. Ehrenfeld was sued for libel in Britain by Saudi banker Khalid bin Mahfouz over accusations in Ehrenfeld's book that Mahfouz financed terrorism. The British courts ruled that it had jurisdiction, despite only 23 copies of her book being sold in Britain. Ehrenfeld did not contest the case, and Mr. Mahfouz was awarded $225,000 in a default judgment. Ehrenfeld sought a declaratory judgment in New York federal court that the British judgment was unenforceable, but the court ruled it had no jurisdiction over Mahfouz. (The New York legislature subsequently enacted libel tourism protection for those in situations like Ehrenfeld, which Governor Paterson signed into law last April.)
Certainly, such a bill would be a good thing, especially if it had some counterclaim teeth as the Senate version suggests. Indeed, in an editorial, The Washington Post wrote approvingly of such a measure, so long as it "would not have the unintended consequence of weakening jurisdictional defenses that U.S. citizens have in foreign courts."
But what took them so long?
Actually, that's rhetorical. I know what took them so long: only with the Ehrenfeld case did the "war on terror" aspect of libel tourism come to light. Indeed, in a statement, Specter and Lieberman noted that one of the bill's key concerns was fighting terrorism:
"Freedom of speech, freedom of the press, freedom of expression of ideas, opinions, and research, and freedom of exchange of information are all essential to the functioning of a democracy, and the fight against terrorism," Senator Specter said. "There is a real danger that American writers and researchers will be afraid to address the crucial subject of terror funding and other important matters without these protections."
"Supporters of Islamist terror are using foreign courts to silence journalists trying to expose those supporting terrorist networks around the world," Senator Lieberman said. "This important bill will protect the Constitutional rights of American journalists so that they can continue their work that is critical to the safety and security of our country."
But the threat to speech posed by jurisdictionally tenuous libel cases isn't new. In 2002, an Australian court ruled that it had jurisdiction over Barron's Online's alleged libel of Australian businessman Joseph Gutnick, despite Barron's infinitesimal Australian readership. Although Dow Jones, Barron's parent company, later settled that case, it's just as ridiculous a jurisdictional claim and just as clear a threat to speech as Ehrenfeld's case. It just lacks the terror angle, and thus, presumably, the political sex appeal. It would've been nice had Congress acted when the threat first appeared.
And the bill can't address the problem at its source: the foreign courts. Eoin O'Carroll, a friend and colleague of mine, wrote in 2006 for Austria's Institute for Human Sciences about Europe's penchant for imposing its stricter libel laws outside its borders. O'Carroll wrote that "no other country currently exports its defamation laws as successfully as Great Britain."
In many other Western countries, it is the plaintiff who must demonstrate the falsity of the statements in question. In many countries, including the United States since 1964, plaintiffs who are public figures must additionally prove that the false statements were made deliberately or recklessly.
British law is the opposite: the defendant bears the burden of proving that the statements are true, and must do so without re-using any of the evidence that is in dispute. British libel laws also offer no protection for defendants who exercise reasonable journalistic diligence. In Britain, libel is any false, damaging statement, even one that a reporter has properly sourced. Damages increase if the defendant tries and fails to prove the statements.
Such claimant-friendly laws make the United Kingdom an attractive forum for so-called libel tourists. In recent years, well-heeled businessmen from around the globe have made the British courtroom the venue of choice for protecting their public images.
O'Carroll added that "[t]oday, the United Kingdom's position as global libel cop is firmly established." (Though he noted that "To deliver a genuine coup de gras, one has to go to France," where criminal libel laws also apply.)
Fortunately, there is some hope that the Brits may be up for reforming their libel law. Lawrence Haas of the North Star Writers Group says that "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.
Too late for Ehrenfeld and Dow Jones, but better late than never. Even if it's only the terror angle that's finally woken Congress up, if they get the law passed, it's a good thing.
(Arthur Bright is a second-year law student at the Boston University School of Law and a former CMLP Legal Intern. Before attending law school, Arthur was the online news editor at the Christian Science Monitor.)