Foreign-based lawsuits prompt England to rethink libel laws

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By Karla Adam
Washington Post Foreign Service
Wednesday, February 24, 2010

LONDON -- Amid growing concerns that England's tough libel laws stifle free speech, a parliamentary committee on Wednesday will recommend broad changes that would make it harder to bring lawsuits and prevent foreigners from using English courts for defamation cases.

Over the years, England has attracted waves of aggrieved plaintiffs, from U.S. celebrities to Ukrainian businessmen, who have sought to use English laws that make libel defense difficult and expensive. (Welsh libel laws are the same as England's; Scotland and Northern Ireland have their own procedures.) The burden of proof here is on the defendant, not the plaintiff -- just the opposite of U.S. law. The U.S. Congress is considering legislation that would prohibit enforcement of libel judgments from outside the United States, a move aimed at England. The proposal follows the lead of several states, including New York, home to many prominent publishers, which have already adopted similar laws.

Foreign parties using English courts in libel cases is a "profound concern," said John Whittingdale, a Conservative member of parliament who is chairman of the House of Commons media committee, which is making the recommendations. In a statement, he said that it is a "humiliation that U.S. legislators have felt it necessary to take steps to protect freedom of speech from what are seen as unreasonable incursions by our courts."

In addition to curbing foreigners' use of the courts -- called "libel tourism" here -- the recommendations include slashing legal costs and shifting the burden of proof in some cases.

A famous example of libel tourism here involved Rachel Ehrenfeld, a New York-based author who was sued in London in 2005 by Saudi businessman Khalid bin Mahfouz over allegations in her book "Funding Evil" that he financed terrorism. The book was not published in England, but 23 copies were sold here through and excerpts were on the ABC News Web site. An English court entered a default judgment against her, assessed her $200,000 and ordered her to apologize to bin Mahfouz.

There have been many other cases here as well. In 2007, a Ukrainian businessman sued a Ukrainian Web site -- written in Ukrainian -- because its contents were viewed online in England. In 2004, U.S. boxing promoter Don King sued a New York lawyer over comments suggesting King was anti-Semitic that were posted on a California-based Web site -- possible because they could be read online here.

"It's really the Internet that's been driving this home as an acute problem," said David Heller, staff attorney at the Media Law Resource Center in New York, who said that American publishers and academics are increasingly fearful of potential legal suits in England.

England's libel laws were developed at a time when a person's reputation was paramount, said Eric Barendt, professor of media law at the University College London. "The law emerged in the gentler, kinder, status-focused society of the 19th century, where reputation was regarded as fundamental. The argument was the defendant should be careful and responsible for what they put in public," he said.

Today, libel cases can be staggeringly expensive here. A 2008 Oxford University study found that the cost of defending a libel case in England was 140 times higher than the average of 11 other European countries.

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