Friday, February 20, 2009
THE PROBLEM has lightheartedly come to be known as libel tourism, but the damage inflicted on the First Amendment and academic freedom is serious.
Disgruntled subjects of articles or books produced and distributed almost exclusively in the United States file suit in foreign jurisdictions to get around the strong First Amendment protections afforded here to journalistic and academic works. In the United States, for example, a public figure or public official must prove that allegedly libelous material is false and that the author acted with actual malice in publishing the material. Britain, on the other hand, has become a favorite venue for unhappy subjects because the author must prove that the material is true. Plaintiffs win cases that would be thrown out by U.S. courts.
And British subjects aren't the only ones availing themselves of the favorable U.K. standards. Plaintiffs with little or no connection to the country are filing libel suits there; British judges more often than not allow them to proceed on flimsy jurisdictional grounds. For example, Saudi billionaire Khalid bin Mahfouz filed suit in Britain against American author Rachel Ehrenfeld because her book documented his role in financing terrorism. The book was published and distributed in the United States, yet a British judge allowed the case to proceed because some 20 copies of Ms. Ehrenfeld's book sold through the Internet made their way into the hands of British residents. The court entered a default judgment against Ms. Ehrenfeld. She was assessed more than $200,000 and ordered to destroy copies of her book and apologize to Mr. bin Mahfouz, who has filed dozens of such suits against other authors and publishers.
Ms. Ehrenfeld told her story this week on Capitol Hill, where lawmakers are considering legal avenues to address the problem. Rep. Peter T. King (R-N.Y.) and Sens. Arlen Specter (R-Pa.) and Joseph I. Lieberman (I-Conn.) have crafted legislation that serves as a good starting point for debate. The bill would empower U.S. judges to block enforcement of a foreign libel judgment if it does not comport with U.S. standards. It also would allow an author or publisher whose work has been vindicated in a U.S. court to sue a libel tourist for damages. The lawmakers were right to include this last provision, but they should be careful to make sure that it would not have the unintended consequence of weakening jurisdictional defenses that U.S. citizens have in foreign courts. It would also help immensely if Britain strengthened free-speech protections in its laws. It is encouraging that some British lawmakers are considering that.