On a recent rainy Friday afternoon, British Member of Parliament the Right Honorable Denis MacShane called my cellphone to offer a word of warning.
"Make sure your article is very carefully checked by lawyers before it is printed," he said. "Dealing with this subject is to swim in dangerous waters."
This article, fittingly enough, is about libel. More specifically, it is about the practice of "libel tourism," a growing phenomenon whereby individuals or groups shop abroad for the country offering the most effective curbs on free speech.
It is a matter of consternation to many here in London that the United Kingdom should prove, time and again, to possess the courts most likely to impose an easy gag or order substantial damages. British libel law "shames Britain and makes a mockery of the idea that Britain is a protector of core democratic freedoms," says MacShane. The award-winning Guardian columnist George Monbiot describes the restrictions on Britain's press as a "national disgrace."
It may appear strange that the libel tourist's favorite destination is the cradle of parliamentary democracy and home of Magna Carta. Yet today, many libel plaintiffs can take their cases to Britain and expect to win, courtesy of the peculiarities of UK law, the availability of a well-established and powerful coterie of skillful media lawyers, and the leanings of a judge named David Eady, who has been branded "The Privacy Judge" on account of his eagerness to support the allegedly libeled.
Unlike America, Britain has no written constitution. There is no equivalent of the First Amendment, which enshrines every citizen's right to free speech. In the UK, an angry litigant who can prove that he has been accused of something wrongly and that the accusation has damaged his reputation is on his way to a hefty payout.
He can also look forward in many cases to the destruction of any text—be it printed in a book or newspaper or posted on the Internet—containing the presumed libel. After a claim has been established in court—the hard part for the prosecution—a defendant can, in effect, no longer be assumed innocent. He must prove that he is not guilty, a clear inversion of what most people understand to be justice.
The situation in America is very different. In addition to the constitutional support, freedom of the press is bolstered by the 1964 Supreme Court decision in The New York Times Company v. Sullivan. Montgomery, Alabama police commissioner L.B. Sullivan claimed that a report on police actions against civil-rights protestors amounted to libel. The Supreme Court disagreed and ruled in the paper's favor. The landmark verdict resulted in countrywide adoption of the legal standard known as "actual malice." That is to say, a plaintiff has to show not only that an article is wrong and damaging to his reputation but also that the journalist knew it to be wrong and chose to write it anyway. To prove this, which is to prove what a journalist thought as he sat at his keyboard, is clearly difficult.
At this point, you might argue that the English deserve their silly laws, that in the U.S. free speech is going on strong, and leave it at that. In the age of globalization, however, the legal protections that appear to guarantee the American right to free expression are not as safe as they once were. It is almost impossible these days for a writer to avoid being published abroad.
Whether you are writing a magazine article that will end up on the Internet and be accessible across the world, a newspaper piece that can be syndicated universally, or a book that, even if it is not published outside the U.S., can be bought on a website such as Amazon, your audience is global. And so, as countries grow increasingly interdependent, national legal systems have become increasingly entangled.
As a result, American writers, journalists, and media outlets are finding themselves facing injunctions from British courts for publishing material that was neither written in the UK nor intended for an overseas audience.
"As in the 18th century, the British establishment is seeking to silence Americans who want to reveal the truth about the murkier goings-on in our interdependent world," thundered Denis MacShane in a parliamentary debate on libel last December. "I speak not, I am glad to say, about the government but about the English legal system. Lawyers and courts are 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."
Probably the most notorious libel tourist is Khalid bin Mahfouz, son of Salem bin Mahfouz, founder of the National Commercial Bank of Saudi Arabia. He is as rich as this makes him sound and has a website full of intriguing information. We learn, contrary to information put out by the CIA, that he is not Osama bin Laden's brother in law, that he has never been arrested in Saudi Arabia, and that he has never been accused by the United Nations of sponsoring terrorism.
Since 2004, Mahfouz has won damages from Britain's Mail on Sunday; from the American publisher Pluto and U.S. author Michael Griffin for their book Reaping the Whirlwind; from French authors Jean-Charles Brisard and Guillaume Dasquié, authors of Forbidden Truth; from the eminent Cambridge University Press in the UK; and from American author Rachel Ehrenfeld for her book Funding Evil. Mahfouz brought all of these cases in Britain. Furthermore, all, except the case against Forbidden Truth, were heard by Mr. Justice Eady, as the High Court judge is officially known.
It is Mahfouz's successful suit against Ehrenfeld that has become the greatest cause célèbre of anti-libel-tourism campaigners. Her book was never published in Britain, never printed in Britain, and was not on sale in any British bookshop. It was, however, available on Amazon, and some 20 copies were ordered by people with British addresses.
On the strength of this, Mahfouz sued in the UK and won. Mr. Justice Eady ordered remaining copies of the book pulped and awarded both damages and costs against Ehrenfeld—a total in excess of $200,000. (For obvious reasons, the specifics of the claims made in Funding Evil should not be repeated here, but the title together with the allegations refuted on the Saudi banker's website offer a good idea.)
After considerable public outcry, the British government has promised a consultation on its libel laws in the coming months. At the same time, two U.S. senators have come up with a bill of their own—the Protection of Free Speech Act—which would grant U.S. citizens immunity from having foreign libel rulings enforced in America. These self-appointed guardians of the First Amendment, Joseph Lieberman and Arlen Specter, describe the Mahfouz-Ehrenfeld case as the "impetus" for their plans. They find themselves surrounded by well-wishers across the political spectrum. The Washington Post editorialized in favor of the bill, arguing that "the damage inflicted on the First Amendment and academic freedom is serious."
But have Lieberman and Specter come up with the best way to protect free speech? And beyond Rachel Ehrenfeld, who would benefit?
"Rather than check her facts, defend her statements in open court, or acknowledge her mistakes, Ehrenfeld hides behind a claim to free speech," wrote Mahfouz's lawyer, Laurence Harris of the firm Kendal Freeman, in a letter printed in November 2007 by British political weekly magazine The Spectator. He noted that Ehrenfeld had not contested the libel claims and concluded, "Thank goodness, the legal lights remain on in Britain to expose such harmful journalism." Another British libel lawyer adds, "You can't simply go around calling any old Arab a terrorist and then getting offended if someone points out it's a bit unfair."
While free speech needs defending, there is a fear among members of the international legal community that part of the outcry over libel tourism in the U.S. is being stoked by neocons all too aware that people with Middle Eastern connections can prove that the terrorist threat is neither as widespread nor as well funded as it is often presented.
From a practical perspective, the primary problem with Specter and Lieberman's anti-libel-tourism bill is that, according to lawyers, it will not make much difference. The enforcement of these libel rulings, which is what the bill seeks to prevent, does not happen very often. Nigel Tait, a partner at Carter-Ruck, one of London's fiercest and best known firms of libel lawyers, tells me that he "doesn't know" why the senators are bothering.
"The U.S. doesn't enforce libel judgments very often anyway and never has," says Tait. "Twenty years ago, I won a case for libel against a Russian, so he moved to America so nobody would bother enforcing the judgment." This view appears to be supported by Laurence Harris, who points out that nobody has made any effort to claim the costs and damages from Ehrenfeld.
The same goes for the destruction of her books: copies of Funding Evil have not been burnt because—draconian as the libel laws may be—the British police stop short of knocking on the doors of anyone who has bought a copy and starting a bonfire in his backyard. The final irony is that Lieberman and Specter's bill would not really help Ehrenfeld's reputation, either. To the extent that a British ruling is taken seriously by anyone at the moment, it would continue to stand only for those, like Mahfouz, who wished to cite it.
My own newspaper, The Observer, has recently encountered another flexing of libel muscle with a U.S. connection. It concerns a series of articles about Nadhmi Auchi printed in 2003. Auchi is Iraqi but resident in the UK, so to that extent his use of British courts does not strictly qualify as libel tourism.
It does, however, provide an insight into the power that the system gives a wealthy international complainant who has cropped up on the Forbes list of the richest men in the world and who uses British libel laws for global effect.
Auchi has apparently had some sort of relationship with Tony Rezko, the convicted fraudster who has given money to President Obama. The Observer's articles made a series of allegations about Auchi's Iraqi and French business practices, which became newsworthy last year when the Obama connection came to light. Auchi has a conviction in France for fraud, which he is appealing. In light of threats from Auchi's solicitors, based on the fact simply that he is appealing the conviction, all of these articles have had to be removed from our website.
They vanished, so nobody in the U.S. was able to read them, test their allegations, or have the details at their fingertips to help further reporting at a crucial time in American politics. English Liberal Democrat politician Norman Lamb says the question is not whether Auchi is innocent or guilty, but "it is legitimate to investigate such a matter, given that Mr. Auchi is a prominent British citizen with political connections in this country and overseas. It is alleged that Mr. Auchi and his lawyers, Carter-Ruck, have been making strenuous efforts to close down public debate. Of course, it is absolutely legitimate for any citizen to demand accurate and rigorous investigation and reporting. The question is whether UK libel laws have the disproportionate effect of discouraging legitimate reporting. Many believe that they do."
Free speech must not be put to flight by the approach of a bewigged British judge. Guarding and upholding the values of the U.S. Constitution is not just a worthy endeavor, but an essential safeguard to the American way of life, and something the rest of the world—most of all the UK government as they consider British libel laws—should learn from. The Lieberman and Specter bill, however, does not appear to be the way to do it. It would be a pity if a piece of legislation was pushed through the Senate that achieved little more than making it more comfortable to shout "terrorist" whenever a neocon sets eyes on an Arab.
Oliver Marre writes for The Observer in London.