By ERIC PFANNER
New York Times
May 25, 2009
PARIS — The American Civil Liberties Union may not often see eye to eye with the American Center for Democracy, a research group with neoconservative credentials. But the two organizations are united on at least one thing: their distaste for British libel laws, which they say are being exploited to suppress free speech in Britain and beyond.
British courts have always been friendlier to libel claimants than their American counterparts. Until recently that did not matter much to American authors or publishers. But now the Internet makes anything published in the United States almost immediately available in Britain, too.
Some free-speech advocates in the United States say that so-called libel tourists — people with little connection to Britain — are using the global-distribution argument to justify suing for libel there.
London has gained a reputation as the libel capital of the world. Saudi businessmen have sued there to complain about American reports that they engaged in terrorist financing; Russian and Ukrainian oligarchs have sued in Britain over accusations of unsavory business activities; and Hollywood celebrities have gone to London to seek redress over reports of wayward kisses.
To try to insulate American authors and publishers, groups like the A.C.L.U. and the Center for Democracy have persuaded lawmakers in New York and Illinois to pass state laws that block enforcement of British libel decisions in the United States. Similar bills are advancing in other state legislatures, and stronger measures, allowing American defendants to fight back against adverse foreign libel rulings, have been proposed in the United States Congress.
“We really do see this as a First Amendment issue,” said Judith Platt, director of communications and public affairs at the Association of American Publishers. “So many of these cases are undertaken simply to intimidate U.S. authors.”
A committee of British lawmakers recently began a review of the country’s defamation rules. But analysts say the government appears to be leaning toward making some changes, but not strengthening publishers’ libel defenses. Instead, the government could tighten privacy protection.
As for libel tourism, “I’ve not seen sufficient evidence myself at the moment to suggest that there is a major problem here,” said Jack Straw, the British justice secretary, in testimony to the committee last week.
Critics of British defamation law say it chills free speech in several ways. Defendants have to prove that their published allegations were true, unlike in the United States, where the burden rests with plaintiffs to demonstrate that allegations were false.
Also, defendants in Britain face a heavy financial burden. They have to pay their lawyers regardless of whether they win or lose. The claimants, by contrast, generally sue under “no win, no fee” arrangements. If they win, the defendants often have to pick up the claimants’ costs, too.
Rather than fighting against these odds, many people accused of libel in Britain settle without trials. Or, in suits involving foreign defendants, they simply do not show up.
That is what happened in the case of Rachel Ehrenfeld, director of the American Center for Democracy, who four years ago lost a case that gave rise to the American lobbying campaign.
Ms. Ehrenfeld was sued in Britain by a Saudi businessman, Khalid bin Mahfouz, after she wrote, in a book titled “Funding Evil: How Terrorism Is Financed — and How to Stop It,” that he and members of his family had financially supported Al Qaeda before the attacks of Sept. 11, 2001.
A British judge, David Eady, ordered Ms. Ehrenfeld to pay £10,000 each to Mr. Mahfouz and his two sons, and more than £100,000 in legal costs.
Ms. Ehrenfeld contends that the case should never have been allowed to proceed in Britain, given that only about two dozen copies of the book were shown to have been sold there. British law, Ms. Ehrenfeld said, “is being used as a tool to silence critics and endanger our national security.”
Laurence Harris, a lawyer at Edwards Angell Palmer & Dodge in London who represents Mr. Mahfouz, disputed Ms. Ehrenfeld’s characterization of her client as a libel tourist, saying he was justified in suing in Britain because of his business interests and personal dealings there.
“We don’t think that this book should be seen as a cause célèbre for the issue,” he said. “The U.K. has always seen, rightly I think, that if you say something defamatory about someone, you ought to be able to prove it.”
Mr. Harris contended that behind all the rhetoric about free speech, Ms. Ehrenfeld was simply trying to advance her views on alleged connections between wealthy Saudis and terrorism financing — and, perhaps, to sell more books.
Ms. Ehrenfeld has found supporters in Congress, where Senators Arlen Specter of Pennsylvania and Joseph I. Lieberman of Connecticut have introduced a bill that would allow Americans to countersue for triple damages if a foreign libel suit was “part of a scheme to suppress a U.S. person’s First Amendment rights.”
A similar bill has been introduced in the House by Representative Peter T. King of New York after the passage of a weaker measure in the House last year.
Many British lawyers say new laws are unnecessary because they cannot remember a situation in which a claimant has tried to collect a libel award in the United States. Often their clients are happy with the vindication of the court judgment.
American publishers with operations in Britain are potentially more vulnerable to an effort to collect an award, lawyers say, and newspapers like The Wall Street Journal and The New York Times, as well as The Times’s global edition, The International Herald Tribune, have faced British libel actions recently.
National differences in libel laws have always existed, but the borderless nature of the Internet has increasingly brought them into conflict. In the case of “Funding Evil,” for instance, the first chapter of the book was published on the ABC News Web site, giving it a far wider circulation in Britain than the 23 copies that were sold there, according to Judge Eady.
Britain has started to look into such cases as part of a broader study of the news media. In April, some members of a Parliament committee traveled to New York to interview Ms. Ehrenfeld as well as newspaper editors and media lawyers, asking about differences between American and British approaches to libel, privacy, fact-checking and other journalistic matters. The panel is expected to issue a report on its findings this summer.